Background—Executive Order 13563

On January 18, 2011, the President signed Executive Order 13563, “Improving Regulation and Regulatory Review,” which outlines the following guiding principles:

• Consistent with law, agencies must consider costs and benefits of its regulations and choose the least burdensome path.

• The regulatory process must be transparent and include public participation.

• Agencies must attempt to coordinate, simplify, and harmonize regulations to reduce costs and promote certainty for businesses and the public.

• Agencies must consider approaches that maintain freedom of choice and flexibility, including disclosure of relevant information to the public.

• Regulations must be guided by objective scientific evidence.

Section 6 of Executive Order 13563 emphasizes the importance of retrospective analysis of rules and requires agencies to “develop and submit to the Office of Information and Regulatory Affairs a preliminary plan, consistent with law and its resources and regulatory priorities, under which the agency will periodically review its existing significant regulations to determine whether any such regulations should be modified, expanded, streamlined, or repealed so as to make the agency's regulatory program more effective or less burdensome in achieving the regulatory objectives.”

The Department of the Treasury, in implementing Executive Order 13563, invites public comments on two areas of interest. First, comments are invited concerning the development of its preliminary plan to periodically review existing significant regulations. Second, Treasury invites comments about which regulations should be modified, expanded, streamlined, or repealed in order to make the Department's regulations more effective or less burdensome or both. Although Treasury welcomes general comments, in addressing these two areas, commenters are encouraged to respond to the questions below:

1. What factors should Treasury consider in selecting and prioritizing existing rules for retrospective review?

2. Which regulatory programs are working well and should serve as a model for other Treasury programs?

3. Are there Treasury rules that are outdated or contrary to recently enacted statutes, or otherwise in need of updating?

4. In which Treasury regulations are there opportunities to use new information technologies to improve or ease burdens?

5. How often should Treasury review its existing regulations?

6. Are there any Treasury rules that duplicate requirements or contain conflicting requirements, either with another Treasury bureau or another Federal agency? If so, please identify and explain how these duplicative or conflicting requirements could be modified.

7. How can Treasury improve public outreach and increase public participation in the rulemaking process?

8. Please provide any additional information that will help the Department to develop and implement its preliminary plan for retrospective review of regulations.

The Department advises that this notice and request for comments is issued for information and policy development purposes. Although the Department encourages responses to this notice, such comments do not bind the Department to taking any further actions related to the submission.

Title III of the Energy Policy and Conservation Act of 1975, as amended, (EPCA or the Act) sets forth a variety of provisions designed to improve energy efficiency. Part B of Title III (42 U.S.C. 6291-6309) provides for the Energy Conservation Program for Consumer Products Other Than Automobiles. Part C of Title III, which established an energy conservation program for certain industrial equipment  a (42 U.S.C. 6311−6317), includes provisions for commercial refrigeration equipment, which is the subject of this rulemaking.

DOE is required to design each standard for this equipment to: (1) Achieve the maximum improvement in energy efficiency that is technologically feasible and economically justified; and (2) result in significant conservation of energy. (42 U.S.C. 6295(o)(2)(A) and (o)(3)(B); 42 U.S.C. 6316(e)(1)(A)) To determine whether a proposed standard is economically justified, DOE will, after receiving comments on the proposed standard, determine whether the benefits of the standard exceed its burdens to the greatest extent practicable, using the following seven factors:

1. The economic impact of the standard on manufacturers and consumers of equipment subject to the standard;

2. The savings in operating costs throughout the estimated average life of the covered equipment in the type (or class) compared to any increase in the price, initial charges, or maintenance expenses for the covered equipment which are likely to result from the imposition of the standard;

3. The total projected amount of energy savings likely to result directly from the imposition of the standard;

4. Any lessening of the utility or the performance of the covered equipment likely to result from the imposition of the standard;

5. The impact of any lessening of competition, as determined in writing by the Attorney General, that is likely to result from the imposition of the standard;

6. The need for national energy conservation; and

7. Other factors the Secretary of Energy considers relevant.

Before proposing a standard, DOE typically seeks public input on the analytical framework, models, and tools that DOE will use to evaluate standards for the product at issue; and the results of preliminary analyses DOE performed for the product. DOE publishes this document to announce the availability of the preliminary TSD, which details the preliminary analyses, discusses the comments on the framework document, and summarizes the preliminary results of DOE's analyses. In addition, DOE announces a public meeting to solicit feedback from interested parties on its analytical framework, models, and preliminary results.

EPCA, as amended by EPACT 2005, prescribes energy conservation standards for certain commercial refrigeration equipment: self-contained commercial refrigerators, freezers and refrigerator-freezers with transparent and solid doors designed for holding temperature applications, and self-contained commercial refrigerators with transparent doors designed for pull-down temperature applications. (42 U.S.C. 6313(c)(2)−(3)) Compliance with these standards was required as of January 1, 2010. Id. In addition, EPCA required DOE to set standards for additional commercial refrigeration equipment, namely: commercial ice-cream freezers; self-contained commercial refrigerators, freezers, and refrigerator-freezers without doors; and remote condensing commercial refrigerators, freezers, and refrigerator-freezers. ( See generally, 42 U.S.C. 6313(c)(4)) DOE published a final rule establishing these standards on January 9, 2009 (74 FR 1092), and manufacturers must comply with these standards starting on January 1, 2012. (42 U.S.C. 6313(c)(4)(A))

Additionally, EPCA requires DOE to conduct a second rulemaking to determine whether to amend the standards established under 42 U.S.C. 6313(c), which includes both the standards prescribed by EPACT 2005 and those prescribed by DOE in the January 2009 final rule. (42 U.S.C. 6313(c)(5)) If DOE decides as part of this ongoing rulemaking to amend the standards, DOE must publish a final rule establishing such amended standards by January 1, 2013. Id.

In initiating this rulemaking, DOE prepared a framework document, “Rulemaking Framework for Commercial Refrigeration Equipment,” which describes the procedural and analytical approaches DOE anticipates using to evaluate energy conservation standards for commercial refrigeration equipment. DOE published a notice that announced both the availability of the framework document and a public meeting to discuss the proposed analytical framework for the rulemaking. That notice also invited written comments from the public. 75 FR 24824 (May 6, 2010). The framework document is available at http://www1.eere.energy.gov/buildings/appliance_standards/commercial/pdfs/cre_framework_04-30-10.pdf.

DOE held a public meeting on May 18, 2010, at which it presented the various analyses DOE would conduct as part of the rulemaking, such as the engineering analysis, the life-cycle cost (LCC) and payback period (PBP) analyses, and the national impact analysis (NIA). Manufacturers, trade associations, environmental and energy-efficiency advocates and other interested parties attended the meeting. The participants discussed the following major topics: (1) Issues pertaining to the scope of coverage of the current rulemaking; (2) equipment classes; (3) analytical approaches and methods used in the rulemaking; (4) impacts of standards and burden on manufacturers; (5) technology options; (6) distribution channels, shipments, and end users; (7) impacts of outside regulations; and (8) environmental issues.

Comments received since publication of the framework document have helped DOE identify and resolve issues involved in the preliminary analyses. Chapter 2 of the preliminary TSD, available at the Web address given in the ADDRESSES section of this notice, summarizes and addresses the comments received in response to the framework document.

For the commercial refrigeration equipment covered in this rulemaking, DOE conducted in-depth technical analyses in the following areas: (1) Engineering; (2) markups to determine equipment price; (3) life-cycle cost and payback period; and (4) national impacts. The preliminary TSD that presents the methodology and results of each of these analyses is available at http://www1.eere.energy.gov/buildings/appliance_standards/commercial/refrigeration_equipment.html.

DOE also conducted, and has included in the preliminary TSD, several other analyses that either support the five major analyses. These analyses include: (1) The market and technology assessment; (2) the screening analysis, which contributes to the engineering analysis; and (3) the shipments analysis, which contributes to the LCC and PBP analysis and NIA. In addition to these analyses, DOE has begun preliminary work on the manufacturer impact analysis and identified the methods to be used for the LCC subgroup analysis, the environmental assessment, the employment analysis, the regulatory impact analysis, and the utility impact analysis. DOE will expand on these analyses in the notice of proposed rulemaking (NOPR).

The engineering analysis establishes the relationship between the manufacturer selling price and equipment efficiency that DOE is evaluating for energy conservation standards. This relationship serves as the basis for cost-benefit calculations for individual consumers, manufacturers, and the nation. The engineering analysis identifies representative baseline equipment, which is the starting point for analyzing technologies that provide energy efficiency improvements. Baseline equipment refers to a model or models having features and technologies typically found in the minimum efficiency equipment currently available on the market. After identifying the baseline models, DOE estimated manufacturer selling prices by using a consistent methodology and pricing scheme including material costs, cost of shipping, and manufacturer markups. DOE used these inputs to develop manufacturer selling prices for the baseline and more efficient designs. Later, in the markups to determine the installed price analysis, DOE converts these manufacturer selling prices into installed prices. In the preliminary TSD, section 2.4 of chapter 2 and chapter 5 each provide details on the engineering analysis and the derivation of the manufacturer selling prices.

DOE derives the installed prices for equipment based on manufacturer markups, distributor markups, contractor markups, and sales taxes. In deriving these markups, DOE determined the major distribution channels for equipment sales, the markup associated with each party in each distribution channel, and the existence and magnitude of differences between markups for baseline equipment (baseline markups) and higher efficiency equipment (incremental markups). DOE calculates both overall baseline and overall incremental markups based on the equipment markups at each step in each distribution channel. In the preliminary TSD, section 2.5 of chapter 2 and chapter 6 provide detail on the estimation of markups.

DOE carries out the energy use analysis to estimate the energy consumption of the commercial refrigeration equipment installed in the field, such as in grocery stores and restaurants. DOE also carries out additional studies to understand the impact of variations in building interior temperature and relative humidity on the energy consumption of the refrigeration equipment. Details of the energy use analysis are provided in section 2.6 of chapter 2 and chapter 7 of the TSD.

The LCC and PBP analyses determine the economic impact of potential standards on individual consumers. The LCC is the total cost of the equipment to the customer over the life of the equipment. The LCC analysis compares the LCCs of equipment designed to meet possible energy conservation standards with the LCCs of the equipment likely to be installed in the absence of standards. DOE determines LCCs by considering (1) total installed cost to the purchaser (which consists of manufacturer selling price, sales taxes, distribution chain markups, and installation cost); (2) the operating cost of the equipment (energy cost and maintenance and repair cost); (3) equipment lifetime; and (4) a discount rate that reflects the real consumer cost of capital and puts the LCC in present-value terms. The PBP represents the number of years needed to recover the increase in purchase price (including installation cost) of higher efficiency equipment through savings in the operating cost of the equipment. PBP is calculated by dividing the incremental increase in installed cost of the higher efficiency equipment, compared to baseline equipment, by the annual savings in operating costs. Section 2.7 of chapter 2 and chapter 8 of the preliminary TSD provide details on the LCC and PBP analyses.

The NIA estimates the NES and the NPV of total consumer costs and savings expected to result from new standards at specific efficiency levels (referred to as candidate standard levels). DOE calculated NES and NPV for each candidate standard level for commercial refrigeration equipment as the difference between a base-case forecast (without new standards) and the standards-case forecast (with standards). DOE determined national annual energy consumption by multiplying the number of units in use (by vintage) by the average unit energy consumption (also by vintage). Cumulative energy savings are the sum of the annual NES determined from 2016−2045. The national NPV is the sum over time of the discounted net savings each year, which consists of the difference between total operating cost savings and increases in total installed costs. Critical inputs to this analysis include shipments projections, equipment retirement rates (based on estimated equipment lifetimes), equipment installed costs and operating costs, equipment annual energy consumption, and discount rates. Section 2.8 of chapter 2 and chapter 10 of the preliminary TSD provide details on the NIA.

DOE invites input from the public on all the topics described above. The preliminary analytical results are subject to revision following further review and input from the public. A complete and revised TSD will be made available upon issuance of a NOPR. The final rule establishing any amended energy conservation standards will contain the final analysis results and be accompanied by a final rule TSD.

DOE encourages those who wish to participate in the public meeting to obtain the preliminary TSD from DOE's Web site and to be prepared to discuss its contents. A copy of the preliminary TSD is available at the Web at http://www1.eere.energy.gov/buildings/appliance_standards/commercial/refrigeration_equipment.html. However, public meeting participants need not limit their comments to the topics identified in the preliminary TSD. DOE is also interested in receiving views concerning other relevant issues that participants believe would affect energy conservation standards for this equipment or that DOE should address in the NOPR.

Furthermore, DOE welcomes all interested parties, regardless of whether they participate in the public meeting, to submit in writing by May 16, 2011 comments and information on matters addressed in the preliminary TSD and on other matters relevant to consideration of standards for commercial refrigeration equipment.

The public meeting will be conducted in an informal, conference style. A court reporter will be present to record the minutes of the meeting. There shall be no discussion of proprietary information, costs or prices, market shares, or other commercial matters regulated by United States antitrust laws.

After the public meeting and the closing of the comment period, DOE will consider all timely submitted comments and additional information obtained from interested parties, as well as information obtained through further analyses, and prepare a NOPR. The NOPR will include proposed energy conservation standards for the equipment covered by the rulemaking, and members of the public will be given an opportunity to submit written and oral comments on the proposed standards.

The time and date of the public meeting are listed in the DATES and ADDRESSES sections at the beginning of this NOPM. The public meeting will be held at the U.S. Department of Energy, Forrestal Building, Room 8E-089, 1000 Independence Avenue, SW., Washington, DC 20585-0121. To attend the public meeting, please notify Ms. Brenda Edwards at (202) 586-2945. Any foreign national wishing to participate in the meeting should advise DOE of this fact as soon as possible by contacting Ms. Brenda Edwards to initiate the necessary procedures.

You can attend the public meeting via webinar, and registration information, participant instructions, and information about the capabilities available to webinar participants will be published on the following Web site: http://www1.eere.energy.gov/buildings/appliance_standards/commercial/refrigeration_equipment.html. Participants are responsible for ensuring their systems are compatible with the webinar software.

The purpose of the meeting is to receive comments and to help DOE understand potential issues associated with this proposed rulemaking. DOE must receive requests to speak at the meeting before 4 p.m., Tuesday, April 12, 2011. DOE must receive a signed original and an electronic copy of statements to be given at the public meeting before 4 p.m., Tuesday, April 12, 2011.

Any person who has an interest in today's notice or who is a representative of a group or class of persons that has an interest in these issues may request an opportunity to make an oral presentation. Such persons may hand-deliver requests to speak, along with a computer diskette or CD in WordPerfect, Microsoft Word, PDF, or text (ASCII) file format to the address shown in the ADDRESSES section at the beginning of this NOPM between 9 a.m. and 4 p.m. Monday through Friday, except Federal holidays. Requests may also be sent by mail or e-mail to Brenda.Edwards@ee.doe.gov .

Persons requesting to speak should briefly describe the nature of their interest in this rulemaking and provide a telephone number for contact. DOE requests persons selected to be heard to submit an advance copy of their statements at least two weeks before the public meeting. At its discretion, DOE may permit any person who cannot supply an advance copy of their statement to participate, if that person has made advance alternative arrangements with the Building Technologies Program. The request to give an oral presentation should ask for such alternative arrangements.

DOE will designate a DOE official to preside at the public meeting and may also employ a professional facilitator to aid discussion. The meeting will not be a judicial or evidentiary-type public hearing, but DOE will conduct it in accordance with section 336 of EPCA. (42 U.S.C. 6306) A court reporter will record the proceedings and prepare a transcript. DOE reserves the right to schedule the order of presentations and to establish the procedures governing the conduct of the public meeting. After the public meeting, interested parties may submit further comments on the proceedings as well as on any aspect of the rulemaking until the end of the comment period.

The public meeting will be conducted in an informal conference style. DOE will present summaries of comments received before the public meeting, allow time for presentations by participants, and encourage all interested parties to share their views on issues affecting this rulemaking. Each participant will be allowed to make a prepared general statement (within DOE-determined time limits) prior to the discussion of specific topics. DOE will permit other participants to comment briefly on any general statements.

At the end of all prepared statements on a topic, DOE will permit participants to clarify their statements briefly and comment on statements made by others. Participants should be prepared to answer questions from DOE and other participants concerning these issues. DOE representatives may also ask questions of participants concerning other matters relevant to this rulemaking. The official conducting the public meeting will accept additional comments or questions from those attending, as time permits. The presiding official will announce any further procedural rules or modification of the above procedures that may be needed for the proper conduct of the public meeting.

DOE will make the entire record of this proposed rulemaking, including the transcript from the public meeting, available for inspection at the U.S. Department of Energy, 6th Floor, 950 L'Enfant Plaza, SW., Washington, DC 20024, (202) 586-2945, between 9 a.m. and 4 p.m. Monday through Friday, except Federal holidays. The transcript will also be available on DOE's Web site at: http://www1.eere.energy.gov/buildings/appliance_standards/commercial/refrigeration_equipment.html.

DOE will accept comments, data, and other information regarding the proposed rule before or after the public meeting, but no later than the date provided at the beginning of this NOPM. Please submit comments, data, and other information as provided in the ADDRESSES section. Submit electronic comments in WordPerfect, Microsoft Word, PDF, or text (ASCII) file format and avoid the use of special characters or any form of encryption. Comments in electronic format should be identified by the docket number EERE-2010-BT-STD-0003 and/or RIN 1904-AC19 and wherever possible carry the electronic signature of the author. No telefacsimiles (faxes) will be accepted.

According to 10 CFR 1004.11, any person submitting information that he or she believes to be confidential and exempt by law from public disclosure should submit two copies: One copy of the document including all the information believed to be confidential and one copy of the document with the information believed to be confidential deleted. DOE will make its own determination as to the confidential status of the information and treat it according to its determination.

Factors of interest to DOE when evaluating requests to treat submitted information as confidential include (1) a description of the items; (2) whether and why such items are customarily treated as confidential within the industry; (3) whether the information is generally known by or available from other sources; (4) whether the information has previously been made available to others without obligation concerning its confidentiality; (5) an explanation of the competitive injury to the submitting person which would result from public disclosure; (6) a date upon which such information might lose its confidential nature due to the passage of time; and (7) why disclosure of the information would be contrary to the public interest.

The Secretary of Energy has approved publication of this NOPM.

Authority and Background: DOE intends to publish a final rule determining whether to amend the current energy conservation standards for electric motors. On September 28, 2010, DOE published a notice of availability of the “Energy Conservation Standards Rulemaking Framework Document for Electric Motors” (Framework Document), which describes the procedural and analytical approaches DOE anticipates using in its evaluation. 75 FR 59657. DOE must publish a final rule determining whether to amend the electric motors standards by December 19, 2012. (42 U.S.C. 6313(b)(4)(B)).

The current energy conservation standards for electric motors, as set forth in the Energy Independence and Security Act of 2007 (EISA 2007) amendments to the Energy Policy and Conservation Act (ECPA), establish energy conservation standards for two types of general purpose electric motors: (1) Subtype I, and (2) subtype II. (42 U.S.C. 6313(b)(2)) These broad categories include various types of motors, such as the National Electrical Manufacturers Association (NEMA) Design B motors rated from 1 to 500 horsepower, NEMA Design A and C motors rated from 1 to 200 horsepower, vertical solid shaft motors and close-coupled pump motors. These standards do not apply to vertical hollow shaft motors, integral shafted partial motors, brake motors, or NEMA Design A motors between 200 and 500 horsepower, among other motor types. This is so because these types of electric motors do not meet currently prescribed definitions for general purpose electric motor (subtype I) and general purpose electric motor (subtype II), in that they are not general purpose motors and cannot be used in most general purpose applications. (42 U.S.C. 6311(13)(A)-(B); 10 CFR 431.12).

During the Framework Document comment period, energy efficiency advocates (the Appliance Standards Awareness Project (ASAP) and the American Council for an Energy-Efficient Economy (ACEEE)), manufacturers (NEMA and Baldor), and utilities (the Pacific Gas and Electric Company (PG&E), Southern California Gas Company (SCGC), San Diego Gas and Electric (SDG&E), and Southern California Edison (SCE)) urged DOE to consider including additional motor types currently without energy conservation standards in DOE's analyses and establishing such standards. (ASAP/NEMA, No. 12 at p. 1; ACEEE, No. 10 at p. 1; Baldor, No. 8 at p. 2; PG&E/SCGC/SDG&E/SCE, No. 11 at p. 1)  1 In the commenters' view, this approach would more effectively increase energy savings than setting more stringent standards for the electric motors that are currently being examined as part of the energy conservation standards rulemaking that DOE has initiated. See 75 FR 59657 (September 28, 2010). These parties also asserted that expanding the scope of DOE's current efforts, along with specially tailored exemptions for certain types of electric motors,would enable DOE to simplify its compliance and enforcement efforts. (ASAP/NEMA, No. 12 at p. 1-2; ACEEE, No. 10 at p. 1)

In light of these comments, DOE requests information regarding definite purpose and special purpose motors, including the additional motor types that DOE describes in Table 1 and Table 2. DOE is considering including definite and special purpose motors in the electric motors standards rulemaking. Although DOE is particularly interested in information on the specific motor types identified in comments received in response to the Framework Document, commenters are welcome to provide information similar to the information sought for any additional motor type that the commenter believes should be included in this rulemaking and the reasons for their inclusion as part of the standards rulemaking.

Description: Public comments are sought from interested parties regarding establishment of energy conservation standards for several types of definite and special purpose motors for which EISA 2007 did not provide energy conservation standards. DOE has the authority to set energy conservation standards for a wider range of electric motors than those classified as general purpose electric motors ( e.g., definite or special purpose motors). The Energy Policy Act of 1992 (“EPAct 1992”) amendments to EPCA defined “electric motor” to include a certain type of “general purpose” motor. (42 U.S.C. 6311(13)(A) (1992)) EPAct 1992 set energy conservation standards for such “electric motors” and explicitly stated that the standards did not apply to definite purpose or special purpose motors. (42 U.S.C. 6313(b)(1)) (1992)) In EISA 2007, Congress removed the definition of “electric motors,” added a definitional heading for “electric motors,” and then denoted several types of “electric motors,” including general purpose electric motors, definite purpose motors, and special purpose motors. (See 42 U.S.C. 6311(13) (2010)) EISA 2007 also amended the energy conservation standards for general purpose motors and removed the exclusion for definite purpose and special purpose motors. (42 U.S.C. 6313(b)(2)-(3) (2010)) Based on these changes, in spite of the absence of any current standards for these types of motors, it is DOE's view that definite and special purpose motors are “electric motor” categories covered under EPCA. Accordingly, DOE is considering establishing standards for certain definite and special purpose motors in the context of the electric motors rulemaking.

While existing energy conservation standards cover a majority of the electric motors market, based on DOE's initial findings, several categories of the definite or special purpose motors that interested parties recommended for standards coverage have significant sales volumes, and thus energy savings potential. Adding these motors to the group of motors for which DOE has already set energy conservation standards would also reduce the incentive for manufacturers to attempt to circumvent existing or amended standards by substituting unregulated motors for regulated motors. To this end, DOE examined each motor type to determine whether it would require an engineering analysis separate from covered general purpose electric motors, and whether it could be evaluated using DOE's current test procedure, located in subpart B of 10 CFR part 431.

To inform its decision-making process, DOE seeks information regarding whether any of the motor types listed in Table 1 below have any unique design features that affect the cost or efficiency of the motor. For instance, DOE is interested in whether a particular design feature for a brake motor would prevent it from meeting an efficiency level that its general purpose counterpart can meet. Furthermore, if the cost-efficiency relationship for a comparable general purpose motor cannot be applied to the motor type in question, DOE requests information on the relationship between cost and efficiency. DOE seeks information on whether a scaling relationship can be used to extend the cost-efficiency relationship of a general purpose motor to the motor type in question.

DOE also requests comments on whether inclusion of each of the motor types listed in Table 1 in the electric motors rulemaking would require changes to the current DOE test procedure. DOE requests information on whether the change would require that a new test method or test procedure be incorporated by reference, or whether it would require a slight modification or clarification as to how the test is performed, similar to what is currently done for vertical solid shaft motors, which, as DOE understands the current practice, are tested in the horizontal configuration. If a new test procedure is needed, DOE requests information on any test procedures or test methods that are applicable and available and the reasons for those procedures or methods.

Table 1 summarizes DOE's preliminary findings for each of the motor types that stakeholders support including within the electric motors standards rulemaking. DOE requests comment on the preliminary conclusions included in the table, as well as the market share of each of these motor types, and the potential energy saved by including each motor type. The market analysis consists of motors sold in the U.S. by NEMA-member companies and does not include any imports. DOE also requests comment on whether there are any other types of motors not listed in Table 1 that DOE should consider including in the standards rulemaking.

The joint comments from ASAP and NEMA also identified several types of motors that the commenters believe should not be included in the standards rulemaking. (ASAP/NEMA, No. 12 at p. 9) These motors are presented in Table 2. To inform its decision-making process, DOE seeks information regarding the merits of this recommendation and whether any of the motor types listed in Table 2 have any unique design features that affect the cost or efficiency of the motor. Furthermore, if the cost-efficiency relationship for a comparable general purpose motor cannot be applied to the motor type in question, DOE requests information on the relationship between cost and efficiency. DOE seeks information on whether a scaling relationship can be used to extend the cost-efficiency relationship of a general purpose motor to the motor type in question.

DOE also requests comments on whether inclusion of each of the motor types listed in Table 2 in the electric motors rulemaking would require changes to the current DOE test procedure and if so, whether those changes would require that a new test method or test procedure be incorporated by reference. If a new test procedure is needed, DOE requests information on any test procedures or test methods that are applicable and available and why those procedures or methods are needed.

Table 2 summarizes DOE's preliminary findings for each of the motor types that ASAP and NEMA do not support for inclusion within the electric motors standards rulemaking. DOE requests comment on the preliminary conclusions included in Table 2, as well as the market share of each of these motor types and their potential energy savings.

In addition to the above issues, DOE seeks information and comment regarding the possible consolidation of two different sets of motors into one equipment class for the purposes of its analysis. Specifically, Baldor and NEMA both recommended that DOE combine Design A and Design B motors into a single equipment class. (Baldor, Framework Public Meeting Transcript, p.77; NEMA, No. 13, p.4) (“Design A” and “Design B” are NEMA-developed designations that define a motor's performance characteristics such as the locked-rotor torque, pull-up torque, breakdown torque, inrush current, and locked-rotor current.) These motors are identical except with respect to the limit on inrush current  2 —Design B motors are limited to certain prescribed levels while Design A motors have no such limitation. DOE is interested in receiving information about any differences in efficiencies between similar Design A and Design B motors. DOE is also interested in receiving information about the respective market shares of Design A and Design B motors.

Baldor and NEMA made a similar recommendation for U-frame and T-frame motors. (Baldor, Framework Public Meeting Transcript, p.126; NEMA, No. 13, p.13) T-frame motors, which are more compact than U-frame motors, are increasingly being used as replacements for their U-frame counterparts. While installing a T-frame motor into a U-frame application requires minor adjustments ( e.g. shimming of the mounting plate and/or using a different shaft coupling, which are changes that a technician can make expeditiously) to enable it to fit within a U-frame application, this motor would provide the same functionality as the U-frame motor it replaces. Partly because of their smaller size and lower weight for similarly rated motors ( i.e. horsepower), information reviewed by DOE indicates that T-frame motors are replacing U-frame motors in both new and existing applications. (NEMA/ACEEE, No. 25, p. 6)  3 DOE is interested in receiving information about the difference in efficiencies between similar T-frame and U-frame motors. DOE is also interested in receiving information about the respective market shares of T-frame and U-frame motors.

DOE will accept comments in response to this RFI under the timeline provided in the DATES section. Comments submitted to the Department through the eRulemaking Portal or by e-mail should be provided in WordPerfect, Microsoft Word, portable document format (PDF), or text file format. Those responding should avoid the use of special characters or any form of encryption. No facsimiles will be accepted. Comments submitted in response to this notice will become a matter of public record and will be made publicly available.

For this RFI, DOE requests comments, information, and recommendations on the following concepts for the purpose of determining whether additional motor types currently without energy conservation standards can and should be assigned energy conservation standards. DOE also seeks information and comment regarding the possible consolidation of NEMA Design A and Design B motors into one equipment class and NEMA T- and U-frame motors into one equipment class for the purpose of its analysis and energy conservation standards.

1. DOE requests comment on the preliminary conclusions included in Table 1 and Table 2.

2. DOE seeks comment on whether the analyses performed for motors that currently have standards can be extended to those electric motors listed in Table 1 and Table 2.

3. DOE seeks information regarding whether any of the motor types listed in Table 1 and Table 2 have any unique design features that affect the cost or efficiency of the motor compared to general purpose motors.

a. If the cost-efficiency relationship for a comparable general purpose motor cannot be applied to the motor type in question, DOE requests information on the relationship between cost and efficiency.

b. DOE requests information on whether a scaling relationship can be used to extend the cost-efficiency relationship of a general purpose motor to the motor type in question.

4. DOE requests comment on the market share of each of these motor types listed in Table 1 and Table 2.

5. DOE requests comment on the potential energy saved by including each motor type listed in Table 1 and Table 2 in the standards rulemaking.

6. DOE seeks information on methods for testing the motors listed in Table 1 and Table 2, and how they may differ from the current test procedures for electric motors. If a new test procedure is needed, DOE requests information on the reasons why such a new procedures is needed and the current availability and applicability of any test procedures or test methods. DOE also seeks confirmation of the accuracy of its understanding with respect to the testing of vertical shaft motors.

7. DOE seeks information on any other types of definite purpose or special purpose motors not listed in Table 1 and Table 2 that DOE should consider including in this rulemaking.

8. DOE seeks comment on the possible consolidation of NEMA Design A and Design B motors into one equipment class, and NEMA T- and U-frame motors into one equipment class.

a. What are the possible differences in achievable efficiency between Design A and Design B motors?

b. What are the respective market shares of Design A and Design B motors?

c. What are the possible differences in achievable efficiency between U-frame and T-frame motors?

d. What are the respective market shares of U-frame and T-frame motors?

Comments Invited

We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.

We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning these special conditions. You can inspect the docket before and after the comment closing date. If you wish to review the docket in person, go to the address in the ADDRESSES section of this preamble between 7:30 a.m. and 4 p.m., Monday through Friday, except Federal holidays.

We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions based on the comments we receive.

If you want us to acknowledge receipt of your comments on this proposal, include with your comments a self-addressed, stamped postcard on which you have written the docket number. We will stamp the date on the postcard and mail it back to you.

On January 26, 2007, Transport Canada Civil Aviation (TCCA), on behalf of Bombardier Inc., located in Montreal Canada, applied to the New York Aircraft Certification Office (NYACO) for FAA approval of a type-design change on the Bombardier Model BD-700-1A10 and BD-700-1A11 airplanes. Per Type Certificate Data Sheet (TCDS) T00003NY, those aircraft models are known under the marketing designation of Global Express and Global 5000, respectively. The change is to introduce the Rockwell-Collins avionics suite to replace the existing Honeywell Primus 2000EP avionics suite. It includes the installation of a SVS that displays video imagery.

Video display on the HUD constitutes new and novel technology for which the FAA has no certification criteria. Title 14, Code of Federal Regulations (14 CFR) 25.773 does not permit visual distortions and reflections that could interfere with the pilot's normal duties and was not written in anticipation of such technology. Other applications for certification of such technology are anticipated in the near future and magnify the need to establish FAA safety standards that can be applied consistently for all such approvals. Special conditions are therefore proposed as prescribed under the provisions of § 21.16.

Under the provisions of 14 CFR 21.101, Bombardier Inc. must show that the Bombardier Model BD-700-1A10 and BD-700-1A11 airplanes, as changed, continue to meet the applicable provisions of the regulations incorporated by reference in T00003NY or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The regulations incorporated by reference in T00003NY are as follows:

Based on the application date, January 26, 2007, under the provisions of § 21.101, the applicable type-certification standards for the modification to the Bombardier Model BD-700-1A10 and BD-700-1A11 airplanes are as follows:

The original certification basis for the Bombardier Model BD-700-1A10 and BD-700-1A11 airplanes shown on TCDS T00003NY, Revision 13.

14 CFR part 25, effective February 1, 1965, including the latest applicable requirements of Amendments 25-1 through 25-119.

If the Administrator finds that the applicable airworthiness regulations ( i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Bombardier Model BD-700-1A10 and BD-700-1A11 airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of 14 CFR 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same or similar novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same or similar novel or unusual design feature, the special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Bombardier Model BD-700-1A10 and BD-700-1A11 airplanes must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36 .

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type-certification basis under 14 CFR 21.101.

The Bombardier Model BD-700-1A10 and BD-700-1A11 airplanes will incorporate the following novel or unusual design features:

An SVS that displays video imagery on a HUD.

For many years the FAA has approved, on transport category airplanes, the use of HUD that display flight symbology, without a significant visual obscuration of the outside view. When the FAA began to evaluate the display of enhanced vision system (EVS) imagery on the HUD, significant potential to obscure the outside view became apparent, contrary to the requirements of 14 CFR 25.773. This rule does not permit distortions and reflections in the pilot-compartment view that can interfere with normal duties, and the rule was not written in anticipation of such technology. The video image potentially interferes with the pilot's ability to see the natural scene in the center of the forward field of view. Therefore, the FAA issued special conditions for such HUD/EVS installations to ensure that the level of safety required by § 25.773 would be met even when the image might partially obscure the outside view. While many of the characteristics of EVS and SVS video differ in some ways, they have one thing in common; the potential for interference with the outside view through the airplane windshield. The FAA proposes special conditions for new and novel technologies to achieve equivalent levels of safety.

Although the pilot may readily be able to see around and through small, individual, stroke-written symbols on the HUD, the pilot may not be able to see around or through the image that fills the display without some interference of the outside view. Nevertheless, the SVS may be capable of meeting the required level of safety when considering the combined view of the image and the outside scene visible to the pilot through the image. It is essential that the pilot can use this combination of image and natural view of the outside scene as safely and effectively as the pilot-compartment view currently available without the SVS image.

Because § 25.773 does not provide for any alternatives or considerations for such a new and novel system, the FAA establishes safety requirements that assure an equivalent level of safety and effectiveness of the pilot-compartment view as intended by that rule. The purpose of this special condition is to provide the unique pilot-compartment-view requirements for the SVS installation.

As discussed above, these special conditions are applicable to the Bombardier Model BD-700-1A10 and BD-700-1A11 airplanes. Should Bombardier Inc. apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the special conditions would apply to that model as well.

This action affects only certain novel or unusual design features on Bombardier Model BD-700-1A10 and BD-700-1A11 airplanes. It is not a rule of general applicability.

The authority citation for these special conditions is as follows:

Accordingly, the Federal Aviation Administration (FAA) proposes the following special conditions as part of the type-certification basis for Bombardier Model BD-700-1A10 and BD-700-1A11 airplanes.

1. During any phase of flight in which it is to be used, the SVS imagery on the HUD must not degrade flight safety or interfere with the effective use of outside visual references for required pilot tasks.

2. To avoid unacceptable interference with the safe and effective use of the pilot-compartment view, the SVS must meet the following requirements:

a. The SVS design must minimize unacceptable display characteristics or artifacts (e.g., terrain shadowing against a dark background) that obscure the desired image of the scene, impair the pilot's ability to detect and identify visual references, mask flight hazards, distract the pilot, or otherwise degrade task performance or safety.

b. Control of SVS image display brightness must be sufficiently effective in dynamically changing background (ambient) lighting conditions to avoid pilot distraction, impairment of the pilot's ability to detect and identify visual references, masking of flight hazards, or to otherwise degrade task performance or safety. If automatic control for image brightness is not provided, it must be shown that a single, manual setting is satisfactory for the range of lighting conditions encountered during a time-critical, high-workload phase of flight ( e.g., low-visibility instrument approach).

c. A readily accessible control must be provided that permits the pilot to immediately deactivate and reactivate display of the SVS image on demand, without having to remove hands from the flight controls and throttles.

d. The SVS image on the HUD must not impair the pilot's use of guidance information, or degrade the presentation and pilot awareness of essential flight information displayed on the HUD, such as alerts, airspeed, attitude, altitude and direction, approach guidance, windshear guidance, TCAS resolution advisories, or unusual-attitude recovery cues.

e. The SVS image and the HUD symbols, which are spatially referenced to the pitch scale, outside view, and image, must be scaled and aligned ( i.e., conformal) to the external scene. In addition, the SVS image and the HUD symbols—when considered singly or in combination—must not be misleading, cause pilot confusion, or increase workload. Airplane attitudes or cross-wind conditions may cause certain symbols ( e.g., the zero-pitch line or flight-path vector) to reach field-of-view limits, such that they cannot be positioned conformally with the image and external scene. In such cases, these symbols may be displayed but with an altered appearance that makes the pilot aware that they are no longer displayed conformally (for example, “ghosting”). The combined use of symbology and runway image may not be used for path monitoring when path symbology is no longer conformal.

f. A HUD system used to display SVS images must, if previously certified, continue to meet all of the requirements of the original approval.

3. The safety and performance of the pilot tasks associated with the use of the pilot-compartment view must be not be degraded by the display of the SVS image. These tasks include the following:

a. Detection, accurate identification and maneuvering, as necessary, to avoid traffic, terrain, obstacles, and other flight hazards.

b. Accurate identification and utilization of visual references required for every task relevant to the phase of flight.

4. Appropriate limitations must be stated in the Operating Limitations section of the Airplane Flight Manual to prohibit the use of the SVS for functions that have not been found to be acceptable.

Throughout this document whenever “we”, “us”, or “our” is used, we mean the EPA. On March 22, 2011, we published a proposal in the Federal Register to (1) approve and disapprove portions of SIP revisions submitted by the State of Oklahoma and (2) promulgate a FIP to address the Clean Air Act requirement for BART for SO 2 emissions and to prevent emissions from Oklahoma sources from interfering with other states' measures to protect visibility. See 76 FR 16168. Our proposal can be accessed online at http://www.regulations.gov (Docket No. EPA-R06-OAR-2010-0190). In the notice we announced an open house and public hearing for the proposal to be held Wednesday, April 13, 2011, in Oklahoma City, Oklahoma. We have scheduled an additional open house and public hearing to be held in Tulsa, Oklahoma on Thursday, April 14, 2011.

The Oklahoma City open house and public hearing is scheduled to be held on Wednesday April 13, 2011, at the Metro Technology Centers, Springlake Campus, Business Conference Center, Meeting Rooms H and I, 1900 Springlake Drive, Oklahoma City, Oklahoma 73111, (405) 424-8324. The Metro Technology Centers Springlake Campus is located at the intersection of Martin Luther King Ave. and Springlake Drive between NE. 36th and NE. 50th just south of the Oklahoma City Zoo and Kirkpatrick Center. Parking for the Business Conference Center is available at no charge.

The Tulsa open house and public hearing is scheduled to be held on Thursday, April 14, 2011, at the Tulsa Tech—Riverside Campus, in the Auditorium of the Alliance Conference Center, 801 East 91st Street, Tulsa, Oklahoma 74132, (918) 828-4000. Driving directions to the Tulsa Tech—Riverside Campus may also be found using the following address: 801 West K Place, Jenks, Oklahoma 74037. The Tulsa Tech—Riverside Campus is located on the south side of Tulsa, and is east of Highway 75 and north of the Creek Turnpike. Parking is available on campus at no charge.

For both locations the open house will begin at 1 p.m. and end at 3 p.m. local time. The public hearing will be held from 4 p.m. until 6 p.m., and again from 7 p.m. until 9 p.m. Opening remarks for the public hearing will be provided at 4 p.m., and again at 7 p.m. The public hearing will provide interested parties the opportunity to present information and opinions to EPA concerning our proposal. Interested parties may also submit written comments, as discussed in the proposal. Written statements and supporting information submitted during the comment period will be considered with the same weight as any oral comments and supporting information presented at the public hearing. We will not respond to comments during the public hearing. When we publish our final action, we will provide written responses to all oral and written comments received on our proposal. To provide opportunities for questions and discussion, we will hold an open house prior to the public hearing. During the open house, EPA staff will be available to informally answer questions on our proposed action. Any comments made to EPA staff during the open house must still be provided formally in writing or orally during the public hearing in order to be considered in the record.

At the public hearing, the hearing officer may limit the time available for each commenter to address the proposal to 5 minutes or less if the hearing officer determines it to be appropriate. We will not be providing equipment for commenters to show overhead slides or make computerized slide presentations. Any person may provide written or oral comments and data pertaining to our proposal at the Public Hearing. Verbatim transcripts, in English, of the hearing and written statements will be included in the rulemaking docket.

Throughout this document whenever “we,” “us,” or “our” is used, we refer to EPA. This section provides additional information by addressing the following questions:

Section 110(a)(1) and (2) of the CAA require, in part, that states submit to EPA plans to implement, maintain and enforce each of the NAAQS promulgated by EPA. These provisions require states to address basic SIP requirements including, for example, adequate provisions for emission inventory development, monitoring, and modeling to assure attainment and maintenance of the applicable standards. By statute, SIPs meeting the requirements of section 110(a)(1) and (2) are to be submitted by states within three years after promulgation of a new or revised standard. These SIPs are commonly referred to as “infrastructure” SIPs.

On October 2, 2007, EPA issued guidance to address infrastructure SIP elements required under section 110(a)(1) and (2) for the 1997 8-hour ozone and PM 2.5 NAAQS. 1 EPA will address these elements below under the following headings: (A) Emission limits and other control measures; (B) Ambient air quality monitoring/data system; (C) Program for enforcement of control measures (PSD, New Source Review for nonattainment areas, and construction and modification of all stationary sources); (D) Interstate and international transport; (E) Adequate authority, resources, implementation, and oversight; (F) Stationary source monitoring system; (G) Emergency authority; (H) Future SIP revisions; (I) Nonattainment areas;  2 (J) Consultation with government officials, public notification, prevention of significant deterioration (PSD), and visibility protection;  3 (K) Air quality and modeling/data; (L) Permitting fees; and (M) Consultation/participation by affected local entities. 4

On July 18, 1997, EPA promulgated new 8-hour ozone and new fine particulate matter primary and secondary NAAQS. (62 FR 38894; 62 FR 38711.) On February 27, 2007, EPA Region 7 received the state of Missouri's ozone and particulate matter infrastructure SIP submittal. The SIP submission was determined to be complete on March 27, 2007. EPA has reviewed the state's formal submission and the relevant statutory and regulatory authorities and provisions generally referenced in the submittal from Missouri.

As described below, today's action only pertains to the 1997 ozone standard; it does not pertain to EPA's 1997 promulgation of the PM 2.5 standards. In addition, it does not address issues relating to interstate transport under section 110(a)(2)(D)(i), which have already been addressed for the 1997 ozone and PM 2.5 NAAQS in prior rulemaking (72 FR 25975).

Missouri's SIP submittal addresses the provisions of section 110(a)(1) and (2) as described below. EPA believes that Missouri has the adequate infrastructure needed to address all applicable elements of section 110(a)(1) and (2) for the 1997 8-hour ozone NAAQS.

(A) Emission limits and other control measures: Section 110(a)(2)(A) requires SIPs to include enforceable emission limits and other control measures, means or techniques, schedules for compliance and other related matters as needed to implement, maintain and enforce each NAAQS.

The state of Missouri's Air Conservation Law and Air Pollution Control Rules authorize the Missouri Department of Natural Resources (MDNR) to regulate air quality and implement air quality control regulations. Section 643.030 of the Missouri Revised Statutes (“Air Conservation Law”) authorizes the “Air Conservation Commission of the State of Missouri” (MACC) to control air pollution, which is defined in Section 643.020 to include air contaminants, which cause or contribute to injury to public health or welfare. Section 643.050 authorizes the MACC to classify and identify air contaminants.

State rule 10 Code of State Regulations (CSR) 10-6.010 (“Ambient Air Quality Standards”) adopts the 1997 ozone standards promulgated by EPA. EPA also notes that emissions from new and existing sources of both volatile organic compounds (VOCs) and nitrogen oxides (NO X )—which are known ozone precursors  5 —are also regulated ( e.g., 10 CSR 10-2.360 relating to VOC emissions from bakery ovens in Kansas City, 10 CSR 10-5.510 relating to NO X emissions from various sources in the St. Louis area). In addition, 10 CSR 10-6.040 incorporates by reference the relevant appendices in 40 CFR part 50 for measuring and calculating the concentration of photochemical oxidants (ozone) in the atmosphere to determine whether the ozone standards have been met. Therefore, ozone is an air contaminant which may be regulated under Missouri law.

Section 643.050 of the Air Conservation Law authorizes the MACC, among other things, to regulate the use of air contaminant sources and to establish emissions limitations for air contaminant sources. Missouri also establishes timetables for compliance in its rules, as appropriate. Appendix A of the state submittal contains a link to the Missouri Air Conservation Law and Appendix C contains a link to Missouri's Effective State Rules and Forms.

EPA notes that 10 CSR 10-6.050 provides that sources may submit information relating to excess emissions during startup, shutdown or malfunction (SSM) events, but expressly provides that nothing in this rule limits the ability of MDNR or the MACC to take appropriate enforcement action. In today's proposed rulemaking, EPA is not proposing to approve or disapprove any existing state provisions with regard to excess emissions during a SSM of operations at a facility. EPA believes that a number of states have SSM provisions that are contrary to the Clean Air Act and existing EPA guidance, 6 and the Agency plans to address such state regulations in the future. In the meantime, EPA encourages any state having a deficient SSM provision to take steps to correct it as soon as possible.

EPA also notes that the Air Conservation Law contains provisions at Sections 643.055 and 643.110, which give the MACC the authority, under certain circumstances, to grant variances from rules and regulations established pursuant to the Clean Air Act. 7 Furthermore, the Missouri air regulations contain provisions which allow the Director of MDNR to exercise his or her discretion to approve alternatives to the Missouri regulations (see, e.g., 10 CSR 10-6.030(19), which allows for the use of an alternative sampling method). In this action, EPA is not proposing to approve or disapprove any existing state rules with regard to “variance” or “Director's discretion” provisions. EPA believes that a number of states have such provisions that are contrary to the Clean Air Act and existing EPA guidance, 8 and the Agency plans to take action in the future to address such state regulations. In the meantime, EPA encourages any state having a “variance” or “Director's discretion” provision that is contrary to the Clean Air Act and EPA guidance to take steps to correct the deficiency as soon as possible.

EPA believes that Missouri has statutory and regulatory authority to establish additional emissions limitations and other measures, as necessary to address attainment and maintenance of the ozone standards. Therefore, EPA believes that the Missouri SIP adequately addresses the requirements of section 110(a)(2)(A) for the 1997 8-hour ozone NAAQS.

(B) Ambient air quality monitoring/data system: Section 110(a)(2)(B) requires SIPs to include provisions to provide for establishment and operation of ambient air quality monitors, collection and analysis of ambient air quality data, and making these data available to EPA upon request.

To address this element, section 643.050 of the Air Conservation Law provides the enabling authority necessary for Missouri to fulfill the requirements of section 110(a)(2)(B). The Air Pollution Control Program and Air Quality Analysis Section, within MDNR, implement these requirements. Along with their other duties, the monitoring program collects air monitoring data, quality assures the results, and reports the data.

MDNR submits annual monitoring network plans to EPA for approval, including plans for its ozone monitoring network, as required by 40 CFR 58.10. 9 Prior to submission to EPA, Missouri makes the plans available for public review on MDNR's Web site. See http://dnr.mo.gov/env/apcp/monitoring/monitoringnetworkplan.pdf. MDNR also conducts five-year monitoring network assessments, including the ozone monitoring network, as required by 40 CFR 58.10(d). On October 27, 2010, EPA approved Missouri's 2010 Ambient Air Quality Monitoring Plan and Missouri's Five-Year Air Monitoring Network Assessment. As mentioned previously under element (A), 10 CSR 10-6.040(4)(D) requires that ambient concentrations of ozone be measured in accordance with the applicable Federal regulations in 40 CFR Part 50, App. D, or equivalent methods as approved by EPA pursuant to 40 CFR Part 53. Missouri submits air quality data to EPA's Air Quality System (AQS) system quarterly, pursuant to the provisions of work plans developed in conjunction with EPA grants to the state.

Based on the foregoing, EPA believes that the Missouri SIP meets the requirements of section 110(a)(2)(B) for the 1997 8-hour ozone NAAQS.

(C) Program for enforcement of control measures (PSD, New Source Review for nonattainment areas, and construction and modification of all stationary sources): Section 110(a)(2)(C) requires states to include the following elements in the SIP: (1) A program providing for enforcement of all SIP measures described in section 110(a)(2)(A); (2) a program for the regulation of the modification and construction of stationary sources as necessary to protect the applicable NAAQS; and (3) a permit program to meet the major source permitting requirements of the Act (including the program for areas designated as not attaining the NAAQS, and a program for the prevention of significant deterioration of air quality program in other areas). As discussed in further detail below, this infrastructure SIP rulemaking will not address the Missouri program for nonattainment area-related provisions, since these submittals are not applicable for the infrastructure SIP approval process.

(1) With respect to enforcement of requirements of the SIP, the Missouri statutes provide authority for MDNR to enforce the requirements of the Air Conservation Law, and any regulations, permits, or final compliance orders issued under the provisions of that law. For example, Section 643.080 of the Air Conservation Law authorizes MDNR to issue compliance orders for violations of the Air Conservation Law, rules promulgated thereunder (which includes rules comprising the Missouri SIP), and conditions of permits (which includes permits under SIP-approved permitting programs). Section 643.085 authorizes MDNR to assess administrative penalties for violations of the statute, regulations, permit conditions, or administrative orders. Section 643.151 authorizes the MACC to initiate civil actions for these violations, and to seek penalties and injunctive relief to prevent any further violation. Section 643.191 provides for criminal penalties for knowing violations of the statute, regulations or permit conditions, in addition to other acts described in that section.

(2) Section 110(a)(2)(C) also requires that the SIP include measures to regulate construction and modification of stationary sources to protect the NAAQS. With respect to smaller sources (Missouri's major source permitting program is discussed in (3) below), Missouri has a program under rule 10 CSR 10-6.060 to review such sources to ensure, among other requirements, that new and modified sources will not interfere with NAAQS attainment. The state rule contains two general categories of sources subject to the minor source permitting program. The first category is “de minimis” sources (regulated at 10 CSR 10-6.060(5))—sources which are not exempt by virtue of rule 10-6.061, permit exemptions, and emit below specified levels ( e.g., 40 tons per year of VOCs). De minimis sources which emit above certain levels specified in rule 10-6.061 ( e.g., 2.75 pounds per hour of NO x or VOCs, and, for VOCs that do not contain hazardous air pollutants, more than 4 tons per year) are required to do an ambient air quality analysis to show that they are not adversely impacting the NAAQS. MDNR may also require impact analyses for other sources (sources lower than these levels) that may be likely to adversely affect air quality. 10 CSR 10-6.060(5).

Missouri also requires preconstruction permits for a second category of sources above the de minimis levels, but below the major source levels. Permits for these sources may only be issued after a determination, among other requirements, that the proposed source or modification would not interfere with attainment or maintenance of a NAAQS. 10 CSR 10-6.060(6).

EPA has determined that Missouri's minor new source review (NSR) program adopted pursuant to section 110(a)(2)(C) of the Act regulates emissions of ozone and its precursors. EPA has also determined that certain provisions of the state's minor NSR program adopted pursuant to section 110(a)(2)(C) of the Act likely do not meet all the requirements found in EPA's regulations implementing that provision. See 40 CFR 51.160-51.164. EPA previously approved Missouri's minor NSR program into the SIP, and at the time there was no objection to the provisions of this program. See 61 FR 7714 (February 29, 1996) (originally approved at 37 FR 10842 (May 31, 1972). Since then, the state and EPA have relied on the existing state minor NSR program to assure that new and modified sources not captured by the major NSR permitting programs do not interfere with attainment and maintenance of the NAAQS.

In this action, EPA is proposing to approve Missouri's infrastructure SIP for ozone with respect to the general requirement in section 110(a)(2)(C) to include a program in the SIP that regulates the modification and construction of any stationary source as necessary to assure that the NAAQS are achieved. EPA is not proposing to approve or disapprove the state's existing minor NSR program itself to the extent that it is inconsistent with EPA's regulations governing this program. EPA believes that a number of states may have minor NSR provisions that are contrary to the existing EPA regulations for this program. EPA intends to work with states to reconcile state minor NSR programs with EPA's regulatory provisions for the program. The statutory requirements of section 110(a)(2)(C) provide for considerable flexibility in designing minor NSR programs, and EPA believes it may be time to revisit the regulatory requirements for this program to give the states an appropriate level of flexibility to design a program that meets their particular air quality concerns, while assuring reasonable consistency across the country in protecting the NAAQS with respect to new and modified minor sources.

(3) Missouri also has a program approved by EPA as meeting the requirements of Part C, relating to prevention of significant deterioration of air quality. Missouri's implementing rule, 10 CSR 10-6.060(8), incorporates the relevant portions of the Federal rule, 40 CFR 52.21, by reference, including the relevant portions of EPA's “NSR reform” rule promulgated by EPA on December 31, 2002. In this action, EPA is not proposing to approve or disapprove any state rules with regard to NSR reform requirements. EPA will act on NSR reform submittals through a separate rulemaking process. For Missouri, we have previously approved the relevant portions of Missouri's NSR reform rules for attainment areas. See 71 FR 36486 (June 27, 2006).

The Missouri SIP also contains a permitting program for major sources and modifications in nonattainment areas; however, this requirement is not addressed in this rulemaking (see discussion of the section 110(a)(2)(I) requirements for nonattainment areas, below).

With respect to the PSD program, EPA notes that the Missouri SIP provides that ozone precursors (volatile organic compounds—VOC and nitrogen oxides—NO x ) are regulated. For example, a source that is major for NO x is major for ozone under the state's prevention of significant deterioration of air quality program in rule 10 CSR 10-6.060(8). In addition, rules 10 CSR 10-6.060(1)(A) and 10-6.060(8)(A) incorporate 40 CFR 52.21(b)(50)(i)(a) by reference. The latter regulation specifically identifies volatile organic compounds and nitrogen oxides as precursors to ozone in all attainment and unclassifiable areas.

Finally, with respect to the applicability of the Missouri PSD program to greenhouse gas (GHG) emissions, EPA notes that Missouri promulgated an emergency amendment to its rules effective January 3, 2011, to ensure that it maintains full authority over its permitting program with respect to GHGs and avoids an overwhelming increase in the number of required permits and resulting burden on Missouri's permitting resources. See 36 Missouri Register 218-219 (January 18, 2011). Although this emergency amendment expires on July 2, 2011, EPA understands that prior to that date, Missouri intends to take further regulatory action to more permanently address GHGs. 10

In the interim, on March 8, 2011, Missouri informed EPA that the infrastructure SIP for the 1997 ozone standard that it submitted on February 22, 2007 only covered the portion of Missouri's PSD program that remained approved after promulgation of EPA's GHG PSD “Narrowing Rule” (75 FR 82536, December 30, 2010). 11 Therefore, EPA believes that it can approve the SIP submission as meeting the applicable infrastructure SIP requirements for the PSD requirements referenced in section 110(a)(2)(C).

On the basis of the foregoing, EPA believes that the Missouri SIP and underlying statutory authority are adequate to meet the requirements of section 110(a)(2)(C) for the 1997 8-hour ozone NAAQS.

(D) Interstate and international transport: Section 110(a)(2)(D)(i) requires SIPs to include provisions prohibiting any source or other type of emissions activity in one state from contributing significantly to nonattainment in, or interfering with maintenance by, another state with respect to the NAAQS, or from interfering with measures required in another state to prevent significant deterioration of air quality or to protect visibility.

Missouri addressed the provisions of section 110(a)(2)(D)(i), as it relates to the 1997 ozone and PM standards, in the SIP submission received by EPA on February 27, 2007. EPA approved the portion of the Missouri SIP submittal relating to section 110(a)(2)(D)(i), on May 8, 2007 (72 FR 25975). Therefore, the proposed action addressed in this notice does not include the interstate transport elements, nor does this rulemaking reopen any aspect of EPA's prior action on the transport elements for Missouri for the 1997 standards.

Section 110(a)(2)(D)(ii) requires that the SIP insure compliance with the applicable requirements of Sections 126 and 115, relating to interstate and international pollution abatement.

Missouri sources have not been identified by EPA as having any interstate or international impacts under Section 126 or Section 115 in any pending actions relating to the 1997 ozone standards. Missouri sources have been identified in findings under 110(a)(2)(D)(i)(I), relating to interstate impacts, in the NO x SIP call (63 FR 57355) and the Clean Air Interstate Rule (70 FR 25162), 12 and Missouri has satisfactorily revised its SIP to respond to these findings.

Section 126(a) of the Act requires new or modified sources to notify neighboring states of potential impacts from sources within the state. Missouri regulations require that affected states receive notice prior to the commencement of any construction or modification of a source. Rule 10 CSR 10-6.060(6) requires that the review of all PSD permit applications follow the procedures of 10 CSR 10-6.060(12)(A), Appendix A. Appendix A in turn requires that the permitting authority notify affected states once a draft permit goes out for public comment. 10 CSR 10-6.060(12)(A)11.

Based on the foregoing, EPA believes that Missouri has the adequate infrastructure needed to address section 110(a)(2)(D)(ii) for the 1997 8-hour ozone NAAQS.

(E) Adequate authority, resources, implementation, and oversight: Section 110(a)(2)(E) requires that SIPs provide for the following: (1) Necessary assurances that the state (and other entities within the state responsible for implementing the SIP) have adequate personnel, funding, and authority under state or local law to implement the SIP, and that there are no legal impediments to such implementation; (2) requirements that the state comply with the requirements relating to state boards, pursuant to section 128 of the Act; and (3) necessary assurances that the state has responsibility for implementation of any plan provision for which it relies on local governments or other entities to carry out that portion of the plan.

(1) With respect to adequate authority, we have previously discussed Missouri's authority to implement the SIP for the 1997 ozone standards, primarily in the discussion of section 110(a)(2)(A). Neither Missouri nor EPA has identified any legal impediments to implementation of those standards.

With respect to adequate resources, MDNR asserts that it has adequate personnel to implement the SIP. The SIP submittal for the 1997 ozone standards describes the regulations governing the various functions of personnel within the Air Pollution Control Program, including the Technical Support (Air Quality Analysis), Air Quality Planning, Enforcement, and Permitting Sections of the program (10 CSR 10-1.010(2)(D)).

With respect to funding, the Air Conservation Law requires the MACC to establish an annual emissions fee for sources in order to fund the reasonable costs of the implementing various air pollution control programs. Section 643.079 of the Air Conservation Law provides for the deposit of the fees into various subaccounts ( e.g., a subaccount for the Title V operating permit program used for Title V activities; a subaccount for non-Title V activities) for use in implementing the programs. The state uses funds in the non-Title V subaccounts, along with General Revenue funds and EPA grants under, for example, sections 103 and 105 of the Act, to fund the programs. EPA conducts periodic program reviews to ensure that the state has adequate resources and funding to, among others, implement the SIP.

(2) Conflict of interest provisions—Section 128.

Section 110(a)(2)(E) also provides that the state must meet the requirements of Section 128, relating to representation on state boards and conflicts of interest by members of such boards. We note that this particular provision is not related to promulgation or revision of any NAAQS, and we have not determined that Missouri must show specifically that it meets this requirement with respect to the ozone infrastructure SIP for the 1997 standards. However, the following discussion shows how Missouri generally meets the requirements of Section 128.

Section 128 requires that a SIP-implementing body which approves permits or enforcement orders under the Act must have at least a majority of members who represent the public interest and do not derive a “significant portion” of income from entities or individuals subject to permits and enforcement orders under the Act. In addition, Section 128 requires that members of such a body or the agency head with similar authorities adequately disclose any potential conflicts of interest.

Section 643.040 of the Air Conservation Law generally tracks the language of section 128 of the Act, and requires that the Missouri Air Conservation Commission promulgate rules regarding conflict of interest. Rule 10 CSR 10-1.020 provides the specific process for disclosure of potential conflicts of interest prior to discussion of, or voting on, a rule, variance, appeal or order, and rules for voting when a member has been excluded from participation. The MACC also has an operations manual which directs members to comply with statutory requirements relating to conflict of interest, including Chapter 105 of the Missouri Revised Statutes, which contains more general prohibitions relating to conflict of interest.

MDNR officials, including the Director, are also subject to the conflict of interest provisions in Chapter 105 of the Missouri Revised Statutes. Sections 105.452 and 105.454 contain prohibitions on actions which may result in a conflict of interest.

(3) With respect to assurances that the state has responsibility to adequately implement the SIP when it authorizes local or other agencies to carry out portions of the plan, Section 643.190 designates the MDNR as the air pollution control agency “for all purposes” of the Clean Air Act. Although Section 643.140 authorizes the MACC to allow local governments such as cities or counties to carry out their own air pollution control programs, the MACC retains authority to carry out the provisions of Missouri's Air Conservation Law in local areas, notwithstanding any such authorization.

The MDNR Air Program oversees the activities of the local agencies to ensure adequate implementation of the plan by the local agencies (Kansas City, City of St. Louis, St. Louis County, and Springfield-Greene County). MDNR utilizes subgrants to the local agencies both to provide adequate funding, and as an oversight mechanism with respect to the local agencies. EPA conducts reviews of the local program activities in conjunction with its oversight of the state program.

Based on the foregoing, EPA believes that Missouri has the adequate infrastructure needed to address section 110(a)(2)(E) for the 1997 8-hour ozone NAAQS.

(F) Stationary source monitoring system: Section 110(a)(2)(F) requires states to establish a system to monitor emissions from stationary sources and to submit periodic emission reports. That section also requires that the state correlate the source reports with emission limitations or standards established under the Act and make reports available for public inspection.

To address this element, Section 643.050.1(3)(a) of the Air Conservation Law authorizes the state to require persons engaged in operations which result in air pollution to monitor or test emissions and to file reports containing information relating to rate, period of emission and composition of effluent. Missouri rule 10 CSR 10-6.030 incorporates various EPA reference methods for testing source emissions, including methods for NO X and VOCs. The Federal test methods are in 40 CFR Part 60, App. A.

Missouri rule 10 CSR 10-6.110 also requires monitoring of emissions and filing of periodic reports on emissions, and Missouri makes this information available to the public. Missouri uses this information to track progress towards maintaining the NAAQS, developing control and maintenance strategies, identifying sources and general emission levels, and determining compliance with emission regulations and additional EPA requirements. Missouri rule 10 CSR 10-6.210, relating to treatment of confidential information, specifically excludes emissions data from confidential treatment. Under that rule emissions data includes information regarding monitoring results required to be reported by sources under Missouri's air pollution control rules. Finally, Section 643.192.2 of the Air Conservation Law requires that MDNR provide an annual report that summarizes annual changes in air quality.

EPA believes that Missouri has the adequate infrastructure needed to address section 110(a)(2)(F) for the 1997 8-hour ozone NAAQS.

(G) Emergency authority: Section 110(a)(2)(G) requires states to provide for authority to address activities causing imminent and substantial endangerment to public health or welfare or the environment (comparable to the authorities provided in Section 303 of the Act), including contingency plans to implement the emergency authorities.

Section 643.090 of the Air Conservation Law authorizes the MACC or the Director of MDNR to declare an emergency where the ambient air, due to meteorological conditions and a buildup of air contaminants, may present an “emergency risk” to public health, safety, or welfare. The MACC or Director may, with the written approval of the governor, by order prohibit, restrict or condition all sources of air contaminants contributing to the emergency condition, during such periods of time necessary to alleviate or lessen the effects of the emergency condition. The statute also enables MDNR to promulgate implementing regulations. Even in the absence of an emergency condition, Section 643.090 also authorizes the Director to issue “cease and desist” orders to specific persons engaging in activities which involve a discharge of air contaminants, or a risk of air contamination, that presents a danger to public health or welfare.

Missouri rule 10 CSR 10-6.130 (“Controlling Emissions During Episodes of High Air Pollution Potential”) includes action levels and contingency measures for ozone and other pollutants. This rule specifies the conditions that establish an air pollution alert, watch or emergency and the associated procedures and emissions reduction objectives for dealing with each. The rule establishes action levels for one-hour and eight-hour average concentrations. The action levels and associated contingency measures vary depending on the level of ozone concentrations in a particular area. This rule is contained in the Federally approved SIP.

EPA believes that the Missouri SIP adequately addresses section 110(a)(2)(G) for the 1997 8-hour ozone NAAQS.

(H) Future SIP revisions: Section 110(a)(2)(H) requires states to have the authority to revise their SIPs in response to changes in the NAAQS, availability of improved methods for attaining the NAAQS, or in response to an EPA finding that the SIP is substantially inadequate to attain the NAAQS.

In addition to Missouri's general enabling authority in Section 643.050 of the Air Conservation Law, discussed previously, Section 643.055 and rules 10 CSR 10-1.010(2)(B)9 and (D) grant MACC authority to promulgate rules, and establish standards and guidelines, to ensure that the state complies with the provisions of the Federal Clean Air Act. This includes authority to revise rules as necessary to respond to a revised NAAQS and to respond to EPA findings of substantial inadequacy ( see, for example, 71 FR 46860, August 15, 2006, in which EPA approved Missouri rules promulgated in response to EPA's NO X SIP call for Missouri and other states).

EPA believes that Missouri has the adequate authority to address section 110(a)(2)(H) for the 1997 8-hour ozone NAAQS.

(I) Nonattainment areas: Section 110(a)(2)(I) requires that in the case of a plan or plan revision for areas designated as nonattainment areas, states must meet applicable requirements of Part D of the Act, relating to SIP requirements for designated nonattainment areas.

The plan submitted by Missouri is a statewide ozone infrastructure SIP and was not intended by Missouri to meet its obligations for nonattainment areas. Missouri has one ozone nonattainment area (the St. Louis metropolitan area).

EPA has not addressed Section 110(a)(2)(I) in its recent infrastructure SIP guidance because Part D SIPs are due on a different schedule than the infrastructure SIP submittal schedule. (See, e.g., the infrastructure SIP guidance for the revised lead standard, 73 FR 67034, n. 113, Nov. 12, 2008, and the infrastructure SIP guidance for the revised NO 2 standards, 75 FR 6523, n. 27, Feb. 9, 2010.) Therefore, this proposal does not address Section 110(a)(2)(I). EPA will take action on any Part D nonattainment plans through a separate rulemaking.

(J) Consultation with government officials, public notification, PSD and visibility protection: Section 110(a)(2)(J) requires SIPs to meet the applicable requirements of the following CAA provisions: (1) section 121, relating to interagency consultation regarding certain CAA requirements; (2) section 127, relating to public notification of NAAQS exceedances and related issues; and (3) Part C of the Act, relating to prevention of significant deterioration of air quality and visibility protection.

(1) With respect to interagency consultation, Section 643.050.3 of the Air Conservation Law requires the MACC to consult and cooperate with other Federal and state agencies, and with political subdivisions, for the purpose of implementing its air pollution control responsibilities. Missouri also has appropriate interagency consultation provisions in its preconstruction permit program. For instance, Missouri rule 10 CSR 10-6.060(12)(B) requires that when a permit goes out for public comment, the permitting authority must provide notice to local air pollution control agencies, the chief executive of the city and county where the installation or modification would be located, any comprehensive regional land use planning agency, any state air program permitting authority, and any Federal Land Manager whose lands may be affected by emissions from the installation or modification.

(2) With respect to the requirements for public notification in Section 127, Missouri rule 10 CSR 10-6.130, discussed previously in connection with the state's authority to address emergency episodes, contains provisions for public notification of elevated ozone and other air pollutant levels, and measures which can be taken by the public to reduce concentrations. In addition, information regarding air pollution and related issues, is provided on an MDNR website, http://www.dnr.mo.gov/pubs/index.html .

(3) With respect to the applicable requirements of Part C, relating to prevention of significant deterioration of air quality and visibility protection, we previously noted in the discussion of section 110(a)(2)(C) (relating to enforcement of control measures) how the Missouri SIP meets the PSD requirements, incorporating the Federal rule by reference. With respect to the visibility component of section 110(a)(2)(J), we reiterate the statutory requirement providing, in relevant part, that each plan must meet the “applicable requirements” of Part C (of Title I of the Act) relating to visibility protection. We note that the other Part C requirements specified in Section 110(a)(2)(J) (applicable requirements relating to prevention of significant deterioration of air quality), specifically relate to the 1997 and 2006 NAAQS (as well as other pollutants regulated under the CAA), and a state must be able to implement those requirements with respect to a new or revised NAAQS when promulgated. In contrast to the PSD program, the visibility protection requirements are not directly related to the promulgation of, or revision to, a NAAQS. While the SIP must independently meet the visibility protection requirements of Part C by virtue of the specific SIP requirements in Sections 169A and 169B of the Act, EPA believes that the visibility protection requirements are not “applicable requirements” within the meaning of Section 110(a)(2)(J) and that the infrastructure SIP is not required to be revised with respect to visibility protection merely due to promulgation of, or revision to, these 1997 ozone NAAQS.

For the reasons stated above, EPA believes that Missouri has met the applicable requirements of Section 110(a)(2)(J) for the 1997 8-hour ozone NAAQS in the state.

(K) Air quality and modeling/data: Section 110(a)(2)(K) requires that SIPs provide for performing air quality modeling, as prescribed by EPA, to predict effects on ambient air quality of emissions of any NAAQS pollutant, and for submission of such data to EPA upon request.

Missouri has authority to conduct air quality modeling and report the results of such modeling to EPA. Section 643.050 of the Air Conservation Law provides Missouri with the general authority to develop a general comprehensive plan to prevent, abate, and control air pollution. EPA believes that this statutory authority, along with other authorities such as found in Section 643.055 discussed above, provides MDNR with authority to conduct modeling to address NAAQS issues. As an example of regulatory authority to perform modeling for purposes of determining NAAQS compliance, Missouri regulation 10 CSR 10-6.060, App. F requires the use of EPA-approved air quality models ( e.g., those found in 40 CFR part 51, App. W) for construction permitting. Rule 10 CSR 10-6.110 requires specified sources of air pollution to report emissions to MDNR, which among other purposes may be utilized in modeling analyses. These data are available to any member of the public, upon request. 10 CSR 10-6.110(3)(D).

EPA believes that Missouri has the adequate infrastructure needed to address section 110(a)(2)(K) for the 1997 8-hour ozone NAAQS.

(L) Permitting Fees: Section 110(a)(2)(L) requires SIPs to require each major stationary source to pay permitting fees to the permitting authority to cover the cost of reviewing, approving, implementing and enforcing a permit. That section provides that the fee requirement applies until a fee program established by the state pursuant to Title V of the Act, relating to operating permits, is approved by EPA.

Section 643.079 of the Air Conservation Law provides authority for MDNR to collect permit fees, including Title V fees. Missouri's Title V program, including the fee program addressing the requirements of the Act and 40 CFR 70.9 relating to Title V fees, was approved by EPA in May 1997 (62 FR 26405, May 14, 1997). Therefore, EPA believes that the requirements of section 110(a)(2)(L) are met.

(M) Consultation/participation by affected local entities: Section 110(a)(2)(M) requires SIPs to provide for consultation and participation by local political subdivisions affected by the SIP.

Section 643.050.3(6) of the Air Conservation Law requires that the MACC encourage political subdivisions to handle air pollution control problems within their respective jurisdictions to the extent possible and practicable. Section 643.140 provides the mechanism for local political subdivisions to participate in plan development, while maintaining oversight of local programs within the MACC. The MDNR's Air Pollution Control Program has signed State and Local Agreements with the air agencies with St. Louis City, St. Louis County, Kansas City and Springfield/Greene County. In addition, the program participates in community meetings, consults with, and participates in, interagency consultation groups such as the Metropolitan Planning Organizations in both Kansas City and St. Louis. In Kansas City, MDNR works with the Mid-America Regional Council and in St. Louis, MDNR works with East-West Gateway Coordinating Council of Governments.

Therefore, EPA believes that Missouri has the adequate infrastructure needed to address Section 110(a)(2)(M) for the 1997 8-hour ozone NAAQS.

EPA proposes to approve the State Implementation Plan (SIP) submittal from the state of Missouri which addresses the requirements of Clean Air Act section 110 (a)(2) for the 1997 revisions to the National Ambient Air Quality Standards (NAAQS) for ozone. As described above, EPA believes that Missouri has the required infrastructure to address all elements of section 110(a)(2) to ensure that the revised ozone standards are implemented in the state.

We are hereby soliciting comment on this proposed action. Final rulemaking will occur after consideration of any comments.

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, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves 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 Order 12866 (58 FR 51735, October 4, 1993);

• 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 CAA; and

• Does not provide 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).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

The statutory authority for this action is provided by Section 110 of the CAA, as amended (42 U.S.C. 7410).

Throughout this document whenever “we,” “us,” or “our” is used, we refer to EPA. This section provides additional information by addressing the following questions:

Section 110(a)(1) and (2) of the CAA require, in part, that states submit to EPA plans to implement, maintain and enforce each of the NAAQS promulgated by EPA. These provisions require states to address basic SIP requirements including, for example, adequate provisions for emission inventory development, monitoring, and modeling to assure attainment and maintenance of the applicable standards. By statute, SIPs meeting the requirements of section 110(a)(1) and (2) are to be submitted by States within three years after promulgation of a new or revised standard. These SIPs are commonly referred to as “infrastructure” SIPs.

On October 2, 2007, EPA issued guidance to address infrastructure SIP elements required under section 110(a)(1) and (2) for the 1997 8-hour ozone and PM2.5 NAAQS. 1 EPA will address these elements below under the following headings: (A) Emission limits and other control measures; (B) Ambient air quality monitoring/data system; (C) Program for enforcement of control measures (PSD, New Source Review for nonattainment areas, and construction and modification of all stationary sources); (D) Interstate and international transport; (E) Adequate authority, resources, implementation, and oversight; (F) Stationary source monitoring system; (G) Emergency authority; (H) Future SIP revisions; (I) Nonattainment areas;  2 (J) Consultation with government officials, public notification, prevention of significant deterioration (PSD), and visibility protection;  3 (K) Air quality and modeling/data; (L) Permitting fees; and (M) Consultation/participation by affected local entities. 4

On July 18, 1997, EPA promulgated new 8-hour ozone and new fine particulate matter primary and secondary NAAQS. (62 FR 38894; 62 FR 38711). On December 7, 2007, EPA Region 7 received the state of Nebraska's ozone infrastructure SIP submittal. EPA has reviewed the state's formal submission and the relevant statutory and regulatory authorities and provisions generally referenced in the submittal from Nebraska.

As described below, today's proposed action only pertains to the 1997 ozone standard; it does not pertain to EPA's 1997 promulgation of the PM 2.5 standards. In addition, it does not address issues relating to interstate transport under section 110(a)(2)(D)(i), which have already been addressed for the 1997 ozone and PM 2.5 NAAQS in prior rulemaking (72 FR 71245).

Nebraska's SIP submittal addresses the provisions of section 110(a)(1) and (2) as described below. EPA believes that Nebraska has the adequate infrastructure needed to address all applicable elements of section 110(a)(1) and (2) for the 1997 8-hour ozone NAAQS.

(A) Emission limits and other control measures: Section 110(a)(2)(A) requires SIPs to include enforceable emission limits and other control measures, means or techniques, schedules for compliance and other related matters as needed to implement, maintain and enforce each NAAQS.

The state of Nebraska's statutes and Air Quality Regulations authorize the Nebraska Department of Environmental Quality (NDEQ) to regulate air quality and implement air quality control regulations. Section 81-1504 of the Nebraska Revised Statutes authorizes NDEQ to act, among other things, as the state air pollution control agency for all purposes of the CAA and to develop comprehensive programs for the prevention, control and abatement of new or existing pollution to the air of the state. Air pollution is defined in Section 81-1502 of the Nebraska Revised Statutes as the presence in the outdoor atmosphere of one or more air contaminants or combinations thereof in such quantities and of such duration as are or may tend to be injurious to human, plant, or animal life, property, or the conduct of business.

Section 81-1505(1) of the Nebraska Revised Statutes authorizes the Nebraska Environmental Quality Council (EQC) to adopt and promulgate rules which set air standards that will protect public health and welfare. The EQC is also authorized to classify air contaminant sources according to levels and types of discharges, emissions or other characteristics.

Chapter 4, Section 005 of Title 129 of the Nebraska Administrative Code (NAC) (“Ambient Air Quality Standards”) adopts the 1997 ozone standards promulgated by EPA ( i.e., 0.08 parts per million). In addition, the Nebraska rules incorporate, by reference, Appendix I in 40 CFR Part 50 for determining whether the ozone standards have been attained. Therefore, ozone is an air contaminant which may be regulated under Nebraska law.

EPA notes that Chapter 35, Section 001 of the NAC provides that sources may submit information relating to excess emissions during a startup, shutdown or malfunction (SSM) events. Nevertheless, notwithstanding this provision, the regulations expressly give the Director of NDEQ the ability to take appropriate enforcement action. See chapter 35, Sections 001, 006, and 008 of the NAC. In today's proposed rulemaking, EPA is not proposing to approve or disapprove any existing state provisions with regard to excess emissions during a SSM of operations at a facility. EPA believes that a number of states have SSM provisions that are contrary to the Clean Air Act and existing EPA guidance, 5 and the Agency plans to address such state regulations in the future. In the meantime, EPA encourages any state having a deficient SSM provision to take steps to correct it as soon as possible.

EPA notes that the Section 81-1513 of the Nebraska Revised Statutes contain provisions that give the Director of NDEQ the authority, under certain circumstances, to grant variances from rules and regulations established pursuant to the Clean Air Act. 6 EPA also notes that the Nebraska regulations contain provisions which allow the Director of NDEQ the discretion to approve alternatives to the Nebraska regulations (see, e.g., chapter 6, Section 004 of the NAC, which allows the Director to approve alternate test methods and procedures for use in determining actual emissions). In this action, EPA is not proposing to approve or disapprove any existing state rules with regard to such “variance” or “Director's discretion” provisions. EPA believes that a number of states have such provisions that are contrary to the Clean Air Act and existing EPA guidance  7 , and the Agency plans to take action in the future to address such state regulations. In the meantime, EPA encourages any state having a “variance” or “Director's discretion” provision that is contrary to the Clean Air Act and EPA guidance to take steps to correct the deficiency as soon as possible.

EPA believes that Nebraska has statutory and regulatory authority to establish additional emissions limitations and other measures, as necessary to address attainment and maintenance of the ozone standards. Therefore, EPA believes that the Nebraska SIP adequately addresses the requirements of section 110(a)(2)(A) for the 1997 8-hour ozone NAAQS.

(B) Ambient air quality monitoring/data system: Section 110(a)(2)(B) requires SIPs to include provisions to provide for establishment and operation of ambient air quality monitors, collection and analysis of ambient air quality data, and making these data available to EPA upon request.

To address this element, section 81-1505(12)(o) of the Nebraska Revised Statutes provides the enabling authority necessary for Nebraska to fulfill the requirements of Section 110(a)(2)(B). This provision gives the EQC the authority to promulgate rules and regulations concerning the monitoring of emissions. The Air Quality Division within NDEQ implements these requirements. Along with their other duties, the monitoring program within NDEQ's Air Compliance & Enforcement Program collects air monitoring data, quality assures the results, and reports the data.

NDEQ submits annual monitoring network plans to EPA for approval, including plans for its ozone monitoring network, as required by 40 CFR 58.10. Prior to submission to EPA, Nebraska makes the plans available for public review on NDEQ's Web site. See, http://www.deq.state.ne.us/Publica.nsf/a9f87abbcc29fa1f8625687700625436/3f5f30d938b93ef38625730800516a57?OpenDocument, for NDEQ's 2009 Ambient Air Monitoring Network Plan. This Plan includes, among other things, the locations for the ozone monitoring network. On February 23, 2010, EPA approved Nebraska's 2009 ambient air network monitoring plan. According to this Plan (at page 15), NDEQ also plans to conduct five-year monitoring network assessments, including the ozone monitoring network, as required by 40 CFR 58.10(d). As mentioned previously under element (A), Title 129, Chapter 4, Section 005 of the NAC requires that attainment with the ozone standard be determined in accordance with the applicable Federal regulations in 40 CFR Part 50, App. I. Nebraska submits air quality data to EPA's Air Quality System (AQS) quarterly, pursuant to the provisions of work plans developed in conjunction with EPA grants to the state.

Based on the foregoing, EPA believes that the Nebraska SIP meets the requirements of section 110(a)(2)(B) for the 1997 8-hour ozone NAAQS.

(C) Program for enforcement of control measures (PSD, New Source Review for nonattainment areas, and construction and modification of all stationary sources): Section 110(a)(2)(C) requires states to include the following elements in the SIP: (1) A program providing for enforcement of all SIP measures described in Section 110(a)(2)(A); (2) a program for the regulation of the modification and construction of stationary sources as necessary to protect the applicable NAAQS; and (3) a permit program to meet the major source permitting requirements of the Act (including the program for areas designated as not attaining the NAAQS, and a program for the prevention of significant deterioration of air quality program in other areas). Note that all areas of Nebraska are currently in attainment with the NAAQS. In addition, as discussed in further detail below, this proposed infrastructure SIP rulemaking will not address the Nebraska program for nonattainment area-related provisions, since these submittals are not applicable for the infrastructure SIP approval process.

(1) With respect to enforcement of requirements of the SIP, Section 81-1504(1) of the Nebraska Revised Statutes provide authority for NDEQ to enforce the requirements of the Nebraska Environmental Protection Act, and any regulations, permits, or final compliance orders issued under the provisions of that law. In addition, Section 81-1504(7) authorizes NDEQ to issue orders prohibiting or abating discharges of waste into the air and requiring the modification, extension or adoption of remedial measures to prevent, control, or abate air pollution. Section 81-1507 authorizes NDEQ to commence an enforcement action for any violations of the Environmental Protection Act, any rules or regulations promulgated thereunder, or any orders issued by NDEQ. This enforcement action can not only seek civil penalties, but also require that the recipient take corrective action to address the violation. See Section 81-1508.02. Section 81-1508.01 provides for criminal penalties for knowing or willful violations of the statute, regulations or permit conditions, in addition to other acts described in that section.

(2) Section 110(a)(2)(C) also requires that the SIP include measures to regulate construction and modification of stationary sources to protect the NAAQS. Nebraska has a program under Title 129, Chapter 17 of the NAC that requires such sources to first obtain a construction permit from NDEQ. The permitting process is designed to ensure that new and modified sources will not interfere with NAAQS attainment. NDEQ has the authority to require the source applying for the permit to undergo an air quality impact analysis. If NDEQ determines that emissions from a constructed or modified source interfere with attainment of the NAAQS, it may deny the permit until the source makes the necessary changes to obviate the objections to the permit issuance. See Chapter 17, Sections 008 and 009 of the NAC.

EPA has determined that Nebraska's minor new source review (NSR) program adopted pursuant to section 110(a)(2)(C) of the Act regulates emissions of ozone and its precursors. EPA has also determined that certain provisions of the state's minor NSR program adopted pursuant to section 110(a)(2)(C) of the Act likely do not meet all the requirements found in EPA's regulations implementing that provision. See 40 CFR 51.160-51.164. EPA previously approved Nebraska's minor NSR program into the SIP, and at the time there was no objection to the provisions of this program. See 37 FR 10842 (May 31, 1972) and 60 FR 372 (January 4, 1995). Since then, the state and EPA have relied on the existing state minor NSR program to assure that new and modified sources not captured by the major NSR permitting programs do not interfere with attainment and maintenance of the NAAQS.

In this action, EPA is proposing to approve Nebraska's infrastructure SIP for ozone with respect to the general requirement in Section 110(a)(2)(C) to include a program in the SIP that regulates the modification and construction of any stationary source as necessary to assure that the NAAQS are achieved. EPA is not proposing to approve or disapprove the state's existing minor NSR program itself to the extent that it is inconsistent with EPA's regulations governing this program. EPA believes that a number of states may have minor NSR provisions that are contrary to the existing EPA regulations for this program. EPA intends to work with states to reconcile state minor NSR programs with EPA's regulatory provisions for the program. The statutory requirements of Section 110(a)(2)(C) provide for considerable flexibility in designing minor NSR programs, and EPA believes it may be time to revisit the regulatory requirements for this program to give the states an appropriate level of flexibility to design a program that meets their particular air quality concerns, while assuring reasonable consistency across the country in protecting the NAAQS with respect to new and modified minor sources.

(3) Nebraska also has a program approved by EPA which meets the requirements of Part C, relating to prevention of significant deterioration of air quality. Nebraska's implementing rule, Title 129, Chapter 19, incorporates the relevant portions of the Federal rule, 40 CFR 52.21 (as of July 1, 2004), by reference. In this action, EPA is not proposing to approve or disapprove any state rules with regard to NSR reform requirements. EPA will act on NSR reform submittals through a separate rulemaking process. For Nebraska, we have previously approved Nebraska's NSR reform rules for attainment areas, and, as previously stated, Nebraska currently has no nonattainment areas. See 76 FR 15852, March 22, 2011.

The Nebraska SIP also contains a permitting program for major sources and modifications in nonattainment areas (see Title 129, Chapter 17, Section 013 ). This section is currently not applicable to Nebraska because all areas of Nebraska are currently in attainment with the NAAQS. Even if it were applicable, the SIP's discussion of nonattainment areas is not addressed in this rulemaking (see discussion of the Section 110(a)(2)(I) requirements for nonattainment areas, below).

With respect to the PSD program, the Nebraska SIP provides that ozone precursors (volatile organic compounds—VOCs and oxides of nitrogen—NOx) are regulated. For example, a stationary source that is major for VOCs is also major for ozone, pursuant to Chapter 2, Section 005 of the NAC. In addition, a source that undergoes an emissions increase or a net emissions increase of 40 tons per year of VOCs also is considered to have undergone an emissions increase or net emissions increase of 40 tons per year of ozone under the state's prevention of significant deterioration of air quality program. See Chapter 19, Section 010.06 of the NAC. In addition, because Nebraska defines “regulated NSR pollutant” to include pollutants for which a NAAQS has been promulgated and any precursors for such pollutants that have been identified by EPA, 8 VOCs and NOx are therefore regulated by Nebraska as precursors for ozone.

Finally, EPA notes that on March 22, 2011, in a separate rulemaking, EPA approved the state of Nebraska's revisions to its SIP to regulate GHGs under the Nebraska New Source Review Prevention of Significant Deterioration program. 76 FR 15852. Thus, we have previously determined that the Nebraska SIP meets the PSD requirements with respect to GHGs.

On the basis of the foregoing, EPA believes that the Nebraska SIP and underlying statutory authority are adequate to meet the requirements of section 110(a)(2)(C) for the 1997 8-hour ozone NAAQS.

(D) Interstate and international transport: Section 110(a)(2)(D)(i) requires SIPs to include provisions prohibiting any source or other type of emissions activity in one state from contributing significantly to nonattainment in, or interfering with maintenance by, another state with respect to the NAAQS, or from interfering with measures required in another state to prevent significant deterioration of air quality or to protect visibility.

Nebraska addressed the provisions of Section 110(a)(2)(D)(i), as it relates to the 1997 ozone and PM standards, in the SIP submission received by EPA on May 18, 2007. EPA approved the portion of the Nebraska SIP submittal relating to Section 110(a)(2)(D)(i), on December 17, 2007 (72 FR 71245). Therefore, the proposed action addressed in this notice does not include the interstate transport elements, nor does this rulemaking reopen any aspect of EPA's prior action on the transport elements for Nebraska for the 1997 standards.

Section 110(a)(2)(D)(ii) requires that the SIP insure compliance with the applicable requirements of sections 126 and 115, relating to interstate and international pollution abatement.

Section 126(a) of the Act requires new or modified sources to notify neighboring states of potential impacts from sources within the state. Although Nebraska sources have not been identified by EPA as having any interstate or international impacts under Section 126 or Section 115 in any pending actions relating to the 1997 ozone standards, the Nebraska regulations address abatement of the effects of interstate pollution. Title 129, Chapter 14, Section 010.03 of the NAC requires NDEQ, after receiving a complete PSD permit application, to notify EPA, as well as officials and agencies having cognizance where the proposed construction is to occur. This includes state or local air pollution control agencies and the chief executives of the city and county where the source would be located; any comprehensive regional land use planning agency; and any state, Federal Land Manager, or Indian governing body whose lands may be affected by emissions from the source or modification. Finally, we believe that Nebraska could use the same statutory authorities previously discussed, primarily Section 81-1505 of the Nebraska Revised Statutes, to respond to any future findings with respect to the 1997 ozone standards.

Based on the foregoing, EPA believes that Nebraska has the adequate infrastructure needed to address Section 110(a)(2)(D)(ii) for the 1997 8-hour ozone NAAQS.

(E) Adequate authority, resources, implementation, and oversight: Section 110(a)(2)(E) requires that SIPs provide for the following: (1) Necessary assurances that the state (and other entities within the state responsible for implementing the SIP) have adequate personnel, funding, and authority under state or local law to implement the SIP, and that there are no legal impediments to such implementation; (2) requirements that the state comply with the requirements relating to state boards, pursuant to Section 128 of the Act; and (3) necessary assurances that the state has responsibility for implementation of any plan provision for which it relies on local governments or other entities to carry out that portion of the plan.

(1) With respect to adequate authority, we have previously discussed Nebraska's authority to implement the SIP for the 1997 ozone standards, primarily in the discussion of Section 110(a)(2)(A). Neither Nebraska nor EPA has identified any legal impediments to implementation of those standards.

With respect to adequate resources, NDEQ asserts that it has adequate personnel to implement the SIP. State statutes provide NDEQ the authority to establish bureaus, divisions and or sections to carry out the duties and powers granted by the Nebraska state law to address the control of air pollution, to be administered by full-time salaried, bureau, division or section chiefs. See Nebraska Revised Statutes Section 81-1504(14). NDEQ's Air Quality Division is currently divided into the Permitting Section, the Compliance Section, and the Program Planning and Development Unit.

With respect to funding, the Nebraska statutes require the EQC to establish various fees for sources, in order to fund the reasonable costs of implementing various air pollution control programs. For example, Section 81-1505(12)(e) of the Nebraska Revised Statutes requires the EQC to establish a requirement for sources to pay fees sufficient to pay the reasonable direct and indirect costs of developing and administering the air quality operating permit program. These costs include overhead charges for personnel, equipment, buildings and vehicles; enforcement costs; costs of emissions and ambient monitoring; and modeling analyses and demonstrations. See Nebraska Revised Statutes Section 81-1505.04(2)(b). Similarly, Section 81-1505(12)(a) requires the EQC to establish application fees for air contaminant sources seeking to obtain a permit prior to construction.

Section 81-1505.05 of the Nebraska Revised Statutes provides that all fees collected pursuant to Section 81-1505.04 be credited to the “Clean Air Title V Cash Fund” to be used solely to pay for the direct and indirect costs required to develop and administer the air quality permit program. Similarly, Section 81-1505.06 provides that all fees collected pursuant to Section 81-1505(12) be deposited in the “Air Quality Permit Cash Fund.”

Nebraska uses funds in the non-Title V subaccounts, along with General Revenue funds and EPA grants under, for example, Sections 103 and 105 of the Act, to fund the programs. EPA conducts periodic program reviews to ensure that the state has adequate resources and funding to, among others, implement the SIP.

(2) Conflict of interest provisions—Section 128

Section 110(a)(2)(E) also provides that the state must meet the requirements of Section 128, relating to representation on state boards and conflicts of interest by members of such boards. We note that this particular provision is not related to promulgation or revision of any NAAQS, and we have not determined that Nebraska must show specifically that it meets this requirement with respect to the ozone infrastructure SIP for the 1997 standards. However, the following discussion shows how Nebraska generally meets the requirements of Section 128.

Section 128 requires that a SIP-implementing body which approves permits or enforcement orders under the Act must have at least a majority of members who represent the public interest and do not derive a “significant portion” of income from entities or individuals subject to permits and enforcement orders under the Act. In addition, Section 128 requires that members of such a body or the agency head with similar authorities adequately disclose any potential conflicts of interest.

Section 81-1503 of the Nebraska Revised Statutes generally tracks the language of Section 128 of the Act. It provides guidelines on the composition of the 17 members of the Environmental Quality Council. It also requires that the Director of NDEQ (who is the person responsible for issuing permits and enforcement orders in Nebraska), before he or she enters the duty of his or her office, attest that he or she does not receive a significant portion of his or her income from permit-holders or applicants for a permit. Furthermore, Title 116 of the NAC provides the Code of Ethics for NDEQ, which includes prohibitions on conflicts of interest for all employees (including officers, employees, and directors).

(3) With respect to assurances that the state has responsibility to implement the SIP when it authorizes local or other agencies to carry out portions of the plan, Section 81-1504(18) of the Nebraska Revised Statutes grants NDEQ the authority to encourage local units of government to handle air pollution problems within their own jurisdictions. NDEQ may delegate, by contract with governmental subdivisions which have adopted air pollution control programs, the enforcement of state-adopted air pollution control regulations within a specified region surrounding the jurisdictional area of the governmental subdivision. See Section 81-1504(23). However, the Nebraska statutes also retain authority in NDEQ to carry out the provisions of state air pollution control law. Section 81-1504(1) gives NDEQ “exclusive general supervision” of the administration and enforcement of the Nebraska Environmental Protection Act. In addition, Section 81-1504(4) designates NDEQ as the air pollution control agency for the purposes of the Clean Air Act.

The state of Nebraska relies on two local agencies for assistance in implementing portions of the air pollution control program: Lincoln/Lancaster County Health Department and Omaha Air Quality Control. NDEQ oversees the activities of these local agencies to ensure adequate implementation of the plan. NDEQ utilizes subgrants to the local agencies to provide adequate funding, and as an oversight mechanism. EPA conducts reviews of the local program activities in conjunction with its oversight of the state program. Based on the foregoing, EPA believes that Nebraska has the adequate infrastructure needed to address Section 110(a)(2)(E) for the 1997 8-hour ozone NAAQS.

(F) Stationary source monitoring system: Section 110(a)(2)(F) requires states to establish a system to monitor emissions from stationary sources and to submit periodic emission reports. That section also requires that the state correlate the source reports with emission limitations or standards established under the Act and make reports available for public inspection.

To address this element, Section 81-1505(12)(o) of the Nebraska Revised Statutes gives the EQC the authority to promulgate rules and regulations for air pollution control, including requirements for owner or operator testing and monitoring of emissions. It also gives the EQC the authority to promulgate similar rules and regulations for the periodic reporting of these emissions. See Section 81-1505(12)(l). Chapter 34, Section 002 of the NAC incorporates various EPA reference methods for testing source emissions, including methods for NO X and VOCs. The Federal test methods are in 40 CFR Part 60, App. A.

The Nebraska regulations also require that all Class I and Class II operating permits include requirements for monitoring of emissions. See Chapter 8, Sections 004.01 and 015 of the NAC. Furthermore, Chapter 34, Section 001 of the NAC allows NDEQ to order an emissions source to make or have tests made to determine the rate of contaminant emissions from the source whenever NDEQ has reason to believe that the existing emissions from the source exceed the applicable emissions limits.

The Nebraska regulations also impose reporting requirements on sources subject to permitting requirements. See Chapter 6, Section 001; Chapter 8, Sections 004.03 and 015 of the NAC. Nebraska makes all monitoring reports submitted as part of Class I or Class II permit a publicly available document. Although sources can submit a claim of confidentiality for some of the information submitted, Nebraska regulations specifically exclude emissions data from being entitled to confidential protection. See Chapter 7, Section 004 of the NAC. Nebraska uses this information to track progress towards maintaining the NAAQS, developing control and maintenance strategies, identifying sources and general emission levels, and determining compliance with emission regulations and additional EPA requirements.

EPA believes that Nebraska has the adequate infrastructure needed to address section 110(a)(2)(F) for the 1997 8-hour ozone NAAQS.

(G) Emergency authority: Section 110(a)(2)(G) requires states to provide for authority to address activities causing imminent and substantial endangerment to public health or welfare or the environment (comparable to the authorities provided in Section 303 of the Act), including contingency plans to implement the emergency authorities.

Section 81-1507 of the Nebraska Revised Statutes states that whenever the Director of NDEQ finds that an emergency exists requiring immediate action to protect the public health and welfare, he or she may issue an order requiring that such action be taken as the Director deems necessary to meet the emergency. Chapter 38, Section 003 of the NAC states that the conditions justifying the proclamation of an air pollution alert, air pollution warning, or air pollution emergency exist whenever the Director determines that the accumulation of air pollutants in any place is attaining or has attained levels which could, if such levels are sustained or exceeded, lead to a substantial threat to the health of persons. This regulation also establishes action levels for various air pollutants, including ozone. The action levels (which include “Air Pollution Alert,” “Air Pollution Warning,” and “Air Pollution Emergency”) and associated contingency measures vary depending on the severity of the ozone concentrations. Appendix I to Title 129 of the NAC provides an Emergency Response Plan with actions to be taken under each of the severity levels. These steps are designed to prevent the excessive build-up of air pollutants to concentrations which can result in imminent and substantial danger to public health. Both the regulation at Chapter 38 and the Emergency Response Plan are contained in the federally approved SIP.

EPA believes that the Nebraska SIP adequately addresses section 110(a)(2)(G) for the 1997 8-hour ozone NAAQS.

(H) Future SIP revisions: Section 110(a)(2)(H) requires states to have the authority to revise their SIPs in response to changes in the NAAQS, availability of improved methods for attaining the NAAQS, or in response to an EPA finding that the SIP is substantially inadequate to attain the NAAQS.

As discussed previously, Section 81-1504 of the Nebraska Revised Statutes authorizes NDEQ to regulate air quality and implement air quality control regulations. It also authorizes NDEQ to act as the state air pollution control agency for all purposes of the Clean Air Act. Section 81-1505(1) gives the EQC the authority to adopt and promulgate rules which set air standards that will protect public health and welfare. This authority includes the authority to revise rules as necessary to respond to a revised NAAQS (see, for example, the discussion above regarding Nebraska's adoption of the 1997 ozone NAAQS).

EPA believes that Nebraska has the adequate authority to address section 110(a)(2)(H) for the 1997 8-hour ozone NAAQS.

(I) Nonattainment areas: Section 110(a)(2)(I) requires that in the case of a plan or plan revision for areas designated as nonattainment areas, states must meet applicable requirements of Part D of the Act, relating to SIP requirements for designated nonattainment areas.

This section is currently not applicable to Nebraska because all areas of Nebraska are currently in attainment with the NAAQS. Nevertheless, EPA notes that the Nebraska regulations have provisions in place which address construction or modification of sources in nonattainment areas. See Chapter 17, Section 013 of the NAC. These regulations are contained in the federally approved SIP.

EPA has not addressed section 110(a)(2)(I) in its recent infrastructure SIP guidance because Part D SIPs are due on a different schedule than the infrastructure SIP submittal schedule. (See, e.g., the infrastructure SIP guidance for the revised lead standard, 73 FR 67034, n. 113, Nov. 12, 2008, and the infrastructure SIP guidance for the revised NO 2 standards, 75 FR 6523, n. 27, Feb. 9, 2010.) Therefore, this proposal does not address section 110(a)(2)(I). EPA will take action on any part D nonattainment plans through a separate rulemaking.

(J) Consultation with government officials, Public Notification, PSD and visibility protection: Section 110(a)(2)(J) requires SIPs to meet the applicable requirements of the following CAA provisions: (1) Section 121, relating to interagency consultation regarding certain CAA requirements; (2) Section 127, relating to public notification of NAAQS exceedances and related issues; and (3) Part C of the Act, relating to prevention of significant deterioration of air quality and visibility protection.

(1) With respect to interagency consultation, Section 81-1504(3) authorizes NDEQ to advise and consult and cooperate with other Nebraska state agencies, the Federal government, other states, interstate agencies, and with affected political subdivisions, for the purpose of implementing its air pollution control responsibilities. Nebraska also has appropriate interagency consultation provisions in its preconstruction permit program. See, e.g., Chapter 14, Section 010 of the NAC (requiring NDEQ to send a copy of a notice of public comment on construction permit applications to any state or local air pollution control agency; the chief executives of the city and county in which the source would be located; any comprehensive regional land use planning agency; and any state, Federal Land Manager, or Indian governing body whose lands may be affected by emissions from the source or modification).

(2) With respect to the requirements for public notification in CAA Section 127, Chapter 38 of the NAC, discussed previously in connection with the state's authority to address emergency episodes, contains provisions for public notification of elevated ozone and other air pollutant levels. Appendix I to Title 129 of the NAC includes measures which can be taken by the public to reduce concentrations. In addition, information regarding air pollution and related issues, is provided on an NDEQ Web site, http://www.deq.state.ne.us/NDEQSite.nsf/AirDivSecProg?OpenView&Start=1&ExpandView&Count=500 . NDEQ also prepares an annual report on air quality in the state which is available to the public on its Web site, at http://www.deq.state.ne.us/Publica.nsf/c4afc76e4e077e1186256877 0059b73f/b278ea4efe682747862575e60050d633?OpenDocument .

(3) With respect to the applicable requirements of Part C, relating to prevention of significant deterioration of air quality and visibility protection, we previously noted in the discussion of Section 110(a)(2)(C) (relating to enforcement of control measures) how the Nebraska SIP meets the PSD requirements, incorporating the Federal rule by reference. With respect to the visibility component of Section 110(a)(2)(J), we reiterate the statutory requirement providing, in relevant part, that each plan must meet the “applicable requirements” of Part C (of Title I of the Act) relating to visibility protection. We note that the other Part C requirements specified in section 110(a)(2)(J) (applicable requirements relating to prevention of significant deterioration of air quality), specifically relate to the 1997 and 2006 NAAQS (as well as other pollutants regulated under the CAA), and a state must be able to implement those requirements with respect to a new or revised NAAQS when promulgated. In contrast to the PSD program, the visibility protection requirements are not directly related to the promulgation of, or revision to, a NAAQS. While the SIP must independently meet the visibility protection requirements of Part C by virtue of the specific SIP requirements in sections 169A and 169B of the Act, EPA believes that the visibility protection requirements are not “applicable requirements” within the meaning of section 110(a)(2)(J) and that the infrastructure SIP is not required to be revised with respect to visibility protection merely due to promulgation of, or revision to, these 1997 ozone NAAQS.

For the reasons stated above, EPA believes that Nebraska has met the applicable requirements of Section 110(a)(2)(J) for the 1997 8-hour ozone NAAQS in the state.

(K) Air quality and modeling/data: Section 110(a)(2)(K) requires that SIPs provide for performing air quality modeling, as prescribed by EPA, to predict effects on ambient air quality of emissions of any NAAQS pollutant, and for submission of such data to EPA upon request.

Nebraska has authority to conduct air quality modeling and report the results of such modeling to EPA. Section 81-1504(5) provides NDEQ with the authority to encourage, participate in, or conduct studies, investigations, research and demonstrations relating to air pollution and its causes and effects. As an example of regulatory authority to perform modeling for purposes of determining NAAQS compliance, the regulations at Chapter 19, Section 019 provide for the use of EPA-approved air quality models (e.g., those found in 40 CFR Part 51, App. W) for construction permitting. If the use of these models is inappropriate, the model may be modified or an alternate model may be used with the approval of NDEQ and EPA.

The Nebraska regulations also give NDEQ the authority to require that modeling data be submitted for analysis. Chapter 19, Section 021.02 states that upon request by NDEQ, the owner or operator of a proposed source or modification must provide information on the air quality impact of the source or modification, including all meteorological and topographical data necessary to estimate such impact.

EPA believes that Nebraska has the adequate infrastructure needed to address Section 110(a)(2)(K) for the 1997 8-hour ozone NAAQS.

(L) Permitting Fees: Section 110(a)(2)(L) requires SIPs to require each major stationary source to pay permitting fees to the permitting authority to cover the cost of reviewing, approving, implementing and enforcing a permit. That section provides that the fee requirement applies until a fee program established by the state pursuant to Title V of the Act, relating to operating permits, is approved by EPA.

Section 81-1505 of the Nebraska Revised States provides authority for NDEQ to collect permit fees, including Title V fees. For example, Section 81-1505(e) requires that the EQC establish fees sufficient to pay the reasonable direct and indirect of developing and administering the air quality permit program. Nebraska's Title V program, including the fee program addressing the requirements of the Act and 40 CFR 70.9 relating to Title V fees, was approved by EPA on October 18, 1995 (60 FR 53872). Therefore, EPA believes that the requirements of Section 110(a)(2)(L) are met.

(M) Consultation/participation by affected local entities: Section 110(a)(2)(M) requires SIPs to provide for consultation and participation by local political subdivisions affected by the SIP.

Section 81-1504 of the Nebraska Revised Statutes gives NDEQ the authority to encourage local governments to handle air pollution problems within their respective jurisdictions and at the same time provide them with technical and consultative assistance. NDEQ is also authorized to delegate the enforcement of air pollution control regulations down to governmental subdivisions which have adopted air pollution control programs. As discussed previously, NDEQ currently relies on two local agencies for assistance in implementing portions of the air pollution control program: Lincoln/Lancaster County Health Department and Omaha Air Quality Control.

In addition, as previously noted in the discussion about Section 110(a)(2)(J), Nebraska's statutes and regulations require that NDEQ consult with local political subdivisions for the purposes of carrying out its air pollution control responsibilities.

Therefore, EPA believes that Nebraska has the adequate infrastructure needed to address Section 110(a)(2)(M) for the 1997 8-hour ozone NAAQS.

EPA proposes to approve the State Implementation Plan (SIP) submittal from the state of Nebraska which addresses the requirements of Clean Air Act section 110(a)(2) for the 1997 revisions to the National Ambient Air Quality Standards (NAAQS) for ozone. As described above, EPA believes that Nebraska has the required infrastructure to address all elements of section 110(a)(2) to ensure that the revised ozone standards are implemented in the state.

We are hereby soliciting comment on this proposed action. Final rulemaking will occur after consideration of any comments.

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, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves 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 Order 12866 (58 FR 51735, October 4, 1993);

• 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 CAA; and

• Does not provide 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).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

The statutory authority for this action is provided by Section 110 of the CAA, as amended (42 U.S.C. 7410).

Throughout this document whenever “we,” “us,” or “our” is used, we refer to EPA. This section provides additional information by addressing the following questions:

Section 110(a)(1) and (2) of the CAA require, in part, that states submit to EPA plans to implement, maintain and enforce each of the NAAQS promulgated by EPA. These provisions require states to address basic SIP requirements including, for example, adequate provisions for emission inventory development, monitoring, and modeling to assure attainment and maintenance of the applicable standards. By statute, SIPs meeting the requirements of section 110(a)(1) and (2) are to be submitted by States within three years after promulgation of a new or revised standard. These SIPs are commonly referred to as “infrastructure” SIPs.

On October 2, 2007, EPA issued guidance to address infrastructure SIP elements required under section 110(a)(1) and (2) for the 1997 8-hour ozone and PM 2.5 NAAQS. 1 EPA will address these elements below under the following headings: (A) Emission limits and other control measures; (B) Ambient air quality monitoring/data system; (C) Program for enforcement of control measures (PSD, New Source Review for nonattainment areas, and construction and modification of all stationary sources); (D) Interstate and international transport; (E) Adequate authority, resources, implementation, and oversight; (F) Stationary source monitoring system; (G) Emergency authority; (H) Future SIP revisions; (I) Nonattainment areas;  2 (J) Consultation with government officials, public notification, prevention of significant deterioration (PSD), and visibility protection;  3 (K) Air quality modeling/data; (L) Permitting fees; and (M) Consultation/participation by affected local entities. 4

On July 18, 1997, EPA promulgated new 8-hour ozone and new fine particulate matter primary and secondary NAAQS. (62 FR 38894; 62 FR 38711). On January 8, 2008, EPA Region 7 received the state of Kansas' ozone infrastructure SIP submittal. In a letter dated July 20, 2009, Kansas provided additional clarification on this submittal. EPA has reviewed the state's formal submission and the relevant statutory and regulatory authorities and provisions generally referenced in the submittal from Kansas.

As described below, today's action only pertains to the 1997 ozone standard; it does not pertain to EPA's 1997 promulgation of the PM 2.5 standards. In addition, it does not address issues relating to interstate transport under section 110(a)(2)(D)(i), which have already been addressed for the 1997 ozone and PM 2.5 NAAQS in prior rulemaking (72 FR 10608). 5

Kansas' SIP submittal addresses the provisions of section 110(a)(1) and (2) as described below. EPA believes that Kansas has the adequate infrastructure needed to address all applicable elements of section 110(a)(1) and (2) for the 1997 8-hour ozone NAAQS.

(A) Emission limits and other control measures: Section 110(a)(2)(A) requires SIPs to include enforceable emission limits and other control measures, means or techniques, schedules for compliance and other related matters as needed to implement, maintain and enforce each NAAQS.

The state of Kansas' statutes and regulations authorize Kansas Department of Health and Environment (KDHE) to regulate air quality and implement air quality control regulations. KDHE's statutory authority can be found in Chapter 65, Article 30 of the Kansas Statutes Annotated (KSA), otherwise known as the Kansas Air Quality Act. KSA Section 65-3003 places the responsibility for air quality conservation and control of air pollution with the Secretary of Health and Environment (“Secretary”). The Secretary in turn administers the Kansas Air Quality Act through the Division of Environment within KDHE. Air pollution is defined in KSA Section 65-3002(c) as the presence in the outdoor atmosphere of one or more air contaminants in such quantities and duration as is, or tends significantly to be, injurious to human health or welfare, animal or plant life, or property, or would unreasonably interfere with the enjoyment of life or property, or would contribute to the formation of regional haze.

KSA Section 65-3005(a)(1) provides authority to the Secretary to adopt, amend and repeal rules and regulations implementing the Kansas Air Quality Act. It also gives the Secretary the authority to establish ambient air quality standards for the state of Kansas as a whole or for any part thereof. KSA Section 65-3005(a)(12). The Secretary also has the authority to establish emission control requirements as appropriate to facilitate the accomplishment of the purposes of the Kansas Air Quality Act. KSA Section 65-3010(a).

In its letters to EPA dated January 2, 2008, and July 20, 2009, transmitting its revisions to the Kansas SIP, KDHE stated that the revised SIP specifically addressed the revised NAAQS promulgated on July 18, 1997, for ozone. This assertion is consistent with previous SIP submissions, which EPA has approved for Kansas, implementing the 1997 ozone standards. 6 Therefore, EPA believes ozone is an air contaminant which may be regulated under Kansas law.

EPA notes that the Kansas Air Quality Regulations provide exemptions from the emission control requirements for malfunction breakdowns or necessary repairs, under certain conditions. See, e.g., KAR 28-19-11. In today's proposed rulemaking, EPA is not proposing to approve or disapprove any existing state provisions with regard to excess emissions during a startup, shutdown or malfunction (SSM) of operations at a facility. EPA believes that a number of states have SSM provisions that are contrary to the Clean Air Act and existing EPA guidance, 7 and the Agency plans to address such state regulations in the future. In the meantime, EPA encourages any state having a deficient SSM provision to take steps to correct it as soon as possible.

EPA also notes that the Kansas Air Quality Act contains provisions at KSA 65-3013 that give the Secretary the authority, under certain circumstances, to grant variances from rules and regulations established under the Clean Air Act. 8 Furthermore, the Kansas Air Quality Regulations contain provisions which allow the Secretary of KDHE to exercise his or her discretion to approve alternatives to the Kansas regulations ( see, e.g., KAR 28-19-19(l)(5), which allows for data reporting procedures that vary from those in the regulation; KAR 28-19-210(a), which allows KDHE to approve alternate methods for calculating actual emissions from an emissions unit or stationary source). In this action, EPA is not proposing to approve or disapprove any existing state rules with regard to such “variance” or “Secretary's discretion” provisions. EPA believes that a number of states have such provisions that are contrary to the Clean Air Act and existing EPA guidance, 9 and the Agency plans to take action in the future to address such state regulations. In the meantime, EPA encourages any state having a “variance” or “Secretary's (director's) discretion” provision that is contrary to the Clean Air Act and EPA guidance to take steps to correct the deficiency as soon as possible.

EPA believes that Kansas has statutory and regulatory authority to establish additional emissions limitations and other measures, as necessary to address attainment and maintenance of the ozone standards. Therefore, EPA believes that the Kansas SIP adequately addresses the requirements of section 110(a)(2)(A) for the 1997 8-hour ozone NAAQS.

(B) Ambient air quality monitoring/data system: Section 110(a)(2)(B) requires SIPs to include provisions to provide for establishment and operation of ambient air quality monitors, collection and analysis of ambient air quality data, and making these data available to EPA upon request.

To address this element, KSA Section 65-3007 provides the enabling authority necessary for Kansas to fulfill the requirements of section 110(a)(2)(B). This provision gives the Secretary the authority to classify air contaminant sources which, in his or her judgment, may cause or contribute to air pollution. Furthermore, the Secretary has the authority to require such air contaminant sources to monitor emissions, operating parameters, ambient impacts of any source emissions, and any other parameters deemed necessary. KSA Section 65-3007(b). The Secretary can also require these sources to keep records and make reports consistent with the Kansas Air Quality Act.

Kansas has an air quality monitoring network operated by KDHE and local air quality agencies that collects air quality data that are compiled, analyzed, and reported to EPA. KDHE's Web site contains up-to-date information about air quality monitoring, including a description of the network and information about the monitoring of ozone. See http://www.kdheks.gov/bar/air-monitor/indexMon.html . On February 23, 2010, EPA approved Kansas' 2009 ambient air monitoring network plan.

Within KDHE, the Bureau of Air and Radiation implements these requirements. Along with its other duties, the monitoring program collects air monitoring data, quality assures the results, and reports the data. The data are then used to develop the appropriate regulatory or outreach strategies to reduce air pollution.

KDHE submits a 5-Year Ambient Air Monitoring Network Assessment to EPA, including plans for its ozone monitoring network, as required by 40 CFR 58.10. The most recent 5-year network assessment was dated August 30, 2010. Kansas makes this plan available for public review on KDHE's Web site. See, e.g., http://www.kdheks.gov/bar/air-monitor/2010_Kansas_5-year_Monitoring_Network_Assessment.pdf . This Plan includes, among other things, the locations for the ozone monitoring network. Kansas submits air quality data from this network to EPA's Air Quality System (AQS), which EPA and KDHE use to determine if the network site monitors are in compliance with the NAAQS.

Based on the foregoing, EPA believes that the Kansas SIP meets the requirements of section 110(a)(2)(B) for the 1997 8-hour ozone NAAQS.

(C) Program for enforcement of control measures (PSD, New Source Review for nonattainment areas, and construction and modification of all stationary sources): Section 110(a)(2)(C) requires states to include the following elements in the SIP: (1) A program providing for enforcement of all SIP measures described in section 110(a)(2)(A); (2) a program for the regulation of the modification and construction of stationary sources as necessary to protect the applicable NAAQS; and (3) a permit program to meet the major source permitting requirements of the Act (including the program for areas designated as not attaining the NAAQS, and a program for the prevention of significant deterioration of air quality program in other areas). Note that all areas of Kansas are currently in attainment with the NAAQS. In addition, as discussed in further detail below, this proposed infrastructure SIP rulemaking will not address the Kansas program for nonattainment area-related provisions, since those are not applicable for the infrastructure SIP approval process.

(1) With respect to enforcement of requirements of the SIP, KSA Section 65-3005(a)(3) gives the Secretary the authority to issue orders, permits and approvals as may be necessary to effectuate the purposes of the Kansas Air Quality Act and enforce the Act by all appropriate administrative and judicial proceedings. Pursuant to KSA Section 65-3006, the Secretary also has the authority to publish and enforce rules, regulations and standards to implement the Act and to employ the professional, technical or other staff to effectuate the provisions of the Act. In addition, if the Secretary or the director of the Division of Environment finds that any person has violated any provision of any approval, permit or compliance plan or any provision of the Act or any rule or regulation promulgated under the Act, he or she may issue an order directing the person to take such action as necessary to correct the violation. KSA Section 65-3011.

KSA Section 65-3018 gives the Secretary the authority to impose a monetary penalty against any person who either violates any order or permit issued under the Kansas Air Quality Act, or violates any provision of the Act or rule or regulation promulgated thereunder. Section 65-3019 provides for criminal penalties for knowing violations.

(2) Section 110(a)(2)(C) also requires that the SIP include measures to regulate construction and modification of stationary sources to protect the NAAQS. Kansas has a program under KAR 28-19-300 that requires sources (which meet certain criteria listed in KAR 28-19-300(a)) to first obtain a construction permit from KDHE. The permitting process is designed to ensure, among other things, that new and modified sources will not interfere with NAAQS attainment. If KDHE determines that emissions from a constructed or modified source will interfere with attainment or maintenance of the NAAQS, it cannot issue the permit. See KAR 28-19-301(d).

Kansas also requires preconstruction permits for a second category of smaller sources that meet the criteria listed in KAR 28-19-300(b). Prior to commencing construction or modification, these sources must obtain an approval from KDHE. Again, if KDHE determines that emissions from a constructed or modified source will interfere with attainment or maintenance of the NAAQS, it cannot issue the approval.

The Kansas regulations give KDHE the authority to condition the permit or approval upon compliance by the owner or operator with any special restrictions that are deemed necessary to insure compliance with the Kansas Air Quality regulations or to otherwise prevent air pollution. KAR 28-19-301(e).

EPA has determined that Kansas' minor new source review (NSR) program adopted pursuant to section 110(a)(2)(C) of the Act regulates emissions of ozone and its precursors. EPA has also determined that certain provisions of the state's minor NSR program adopted pursuant to section 110(a)(2)(C) of the Act likely do not meet all the requirements found in EPA's regulations implementing that provision. See 40 CFR 51.160-51.164. EPA previously approved Kansas' minor NSR program into the SIP, and at the time there was no objection to the provisions of this program. See, 40 FR 15879 (April 8, 1975) and 60 FR 36361 (July 17, 1995). Since then, the state and EPA have relied on the existing state minor NSR program to assure that new and modified sources not captured by the major NSR permitting programs do not interfere with attainment and maintenance of the NAAQS.

In this action, EPA is proposing to approve Kansas' infrastructure SIP for ozone with respect to the general requirement in section 110(a)(2)(C) to include a program in the SIP that regulates the modification and construction of any stationary source as necessary to assure that the NAAQS are achieved. EPA is not proposing to approve or disapprove the state's existing minor NSR program itself to the extent that it is inconsistent with EPA's regulations governing this program. EPA believes that a number of states may have minor NSR provisions that are contrary to the existing EPA regulations for this program. EPA intends to work with states to reconcile state minor NSR programs with EPA's regulatory provisions for the program. The statutory requirements of section 110(a)(2)(C) provide for considerable flexibility in designing minor NSR programs, and EPA believes it may be time to revisit the regulatory requirements for this program to give the states an appropriate level of flexibility to design a program that meets their particular air quality concerns, while assuring reasonable consistency across the country in protecting the NAAQS with respect to new and modified minor sources.

(3) Kansas also has a program approved by EPA which meets the requirements of Part C, relating to prevention of significant deterioration of air quality. Kansas' implementing rule, KAR 28-19-350, incorporates the relevant portions of the federal rule, 40 CFR 52.21 (as of July 1, 2007), by reference, including the relevant portions of EPA's “NSR reform” rule promulgated by EPA on December 31, 2002. In this action, EPA is not proposing to approve or disapprove any state rules with regard to NSR reform requirements. EPA will act on NSR reform submittals through a separate rulemaking process. For Kansas, we have previously approved the relevant portions of Kansas' NSR reform rules for attainment areas, and as previously stated, Kansas currently has no nonattainment areas. See 72 FR 29429 (May 29, 2007).

The Kansas SIP also contains a permitting program for major sources and modifications in nonattainment areas (see KAR 28-19-16). This section is currently not applicable to Kansas because all areas of Kansas are currently in attainment with the NAAQS. Even if it were applicable, the SIP's discussion of nonattainment areas is not addressed in this rulemaking ( see discussion of the section 110(a)(2)(I) requirements for nonattainment areas, below).

With respect to the PSD program, EPA notes that the Kansas SIP provides that ozone precursors (volatile organic compounds (VOCs) and nitrogen oxides) are regulated. For example, a stationary source that is major for VOCs is also major for ozone for purposes of permitting in nonattainment areas. KAR 28-19-16a(r). In addition, a source that undergoes a significant net emissions increase for VOCs is also considered to have undergone a significant net emissions increase for ozone for the purposes of the Kansas air quality regulations. KAR 28-19-200(eee)(6). EPA also notes that KAR 28-19-350 incorporates 40 CFR 52.21(b) as of 2007 by reference. The regulations at 40 CFR 52.21(b)(50) specifically state that nitrogen oxides and VOCs are considered precursors for ozone.

In further support of EPA's proposed determination regarding the state's authority to apply its PSD program to the 1997 ozone standard, EPA notes that KAR 28-19-350 also incorporates by reference the requirements of 40 CFR 52.21(k)(1). This provision requires that a permit applicant demonstrate that allowable emissions increases from a new source or modification will not cause or contribute to air pollution in violation of “[a]ny national ambient air quality standard.” EPA believes that this provision is sufficiently open-ended to authorize KDHE to implement any NAAQS upon promulgation by EPA. This view is consistent with KDHE's assertion that it has adequate authority to meet all of the requirements of section 110(a)(2) with respect to the 1997 ozone standard (which includes implementation of the PSD program with respect to that standard).

Finally, we note that on February 22, 2011, in a separate rulemaking, EPA approved the state of Kansas' revisions to its SIP to regulate GHGs under the Kansas New Source Review Prevention of Significant Deterioration program. 76 FR 9658. Thus, we have previously determined that the Kansas SIP meets the PSD requirements with respect to GHGs.

On the basis of the foregoing, EPA believes that the Kansas SIP and underlying statutory authority are adequate to meet the requirements of section 110(a)(2)(C) for the 1997 8-hour ozone NAAQS.

(D) Interstate and international transport: Section 110(a)(2)(D)(i) requires SIPs to include provisions prohibiting any source or other type of emissions activity in one state from contributing significantly to nonattainment in, or interfering with maintenance by, another state with respect to the NAAQS, or from interfering with measures required in another state to prevent significant deterioration of air quality or to protect visibility.

Kansas addressed the provisions of section 110(a)(2)(D)(i), as it relates to the 1997 ozone and PM standards, in a prior SIP submission. EPA approved the portion of the Kansas SIP submittal relating to section 110(a)(2)(D)(i), on March 9, 2007 (72 FR 10608). 10 Therefore, the proposed action addressed in this notice does not include the interstate transport elements, nor does this rulemaking reopen any aspect of EPA's prior action on the transport elements for Kansas for the 1997 standards.

Section 110(a)(2)(D)(ii) requires that the SIP insure compliance with the applicable requirements of sections 126 and 115, relating to interstate and international pollution abatement.

Section 126(a) of the Act requires new or modified sources to notify neighboring states of potential impacts from sources within the state. Although Kansas sources have not been identified by EPA as having any interstate or international impacts under section 126 or section 115 in any pending actions relating to the 1997 ozone standards, the Kansas regulations address abatement of the effects of interstate pollution. For example, KAR 28-19-350(k)(2) requires KDHE, prior to issuing any construction permit for a proposed new major source or major modification, to notify EPA, as well as: Any state or local air pollution control agency having jurisdiction in the air quality control region in which the new or modified installation will be located; the chief executives of the city and county where the source will be located; any comprehensive regional land use planning agency having jurisdiction where the source will be located; and any state, Federal land manager, or Indian governing body whose lands will be affected by emissions from the new source or modification. (KAR 28-19-16k(b) provides similar requirements for construction permits issued in nonattainment areas.) Finally, we believe that Kansas could use the same statutory authorities previously discussed, primarily KSA 65-3005(a), to respond to any future findings with respect to the 1997 ozone standards.

Based on the foregoing, EPA believes that Kansas has the adequate infrastructure needed to address section 110(a)(2)(D)(ii) for the 1997 8-hour ozone NAAQS.

(E) Adequate authority, resources, implementation, and oversight: Section 110(a)(2)(E) requires that SIPs provide for the following: (1) Necessary assurances that the state (and other entities within the state responsible for implementing the SIP) have adequate personnel, funding, and authority under state or local law to implement the SIP, and that there are no legal impediments to such implementation; (2) requirements that the state comply with the requirements relating to state boards, pursuant to section 128 of the Act; and (3) necessary assurances that the state has responsibility for implementation of any plan provision for which it relies on local governments or other entities to carry out that portion of the plan.

(1) With respect to adequate authority, we have previously discussed Kansas' authority to implement the SIP for the 1997 ozone standards, primarily in the discussion of section 110(a)(2)(A). Neither Kansas nor EPA has identified any legal impediments to implementation of those standards.

With respect to adequate resources, KDHE asserts that it has adequate personnel to implement the SIP. The Kansas statutes provide the Secretary the authority to employ technical, professional and other staff to effectuate the purposes of the Kansas Air Quality Act from funds appropriated and available for this purpose. See KSA Section 65-3006(b). Within KDHE, the Bureau of Air and Radiation implements the Kansas Air Quality Act. This Bureau is further divided into the Air Compliance & Enforcement Section, Air Operating Permit & Construction Section; the Monitoring & Planning Section; and the Radiation, Asbestos & Right to Know Section.

With respect to funding, the Kansas Legislature annually approves funding and personnel resources for KDHE to carry out the air program. The annual budget process provides a periodic update that enables KDHE and the local agencies to adjust funding and personnel needs. In addition, the Kansas statutes grant the Secretary authority to establish various fees for sources, to cover any and all parts of administering the provisions of the Kansas Air Quality Act. For example, KSA Section 65-3008(f) allows the Secretary to fix, charge, and collect fees for construction approvals and permits (and the renewals thereof). KSA Section 65-3024 grants the Secretary the authority to establish annual emissions fees. Fees from the construction permits and approvals are deposited into the Kansas state treasury, while emissions fees are deposited into an air quality fee fund. Moneys in the air quality fee fund can only be used for the purpose of administering the Kansas Air Quality Act.

Kansas also uses funds in the non-Title V subaccounts, along with General Revenue funds and EPA grants under, for example, sections 103 and 105 of the Act, to fund the programs. EPA conducts periodic program reviews to ensure that the state has adequate resources and funding to, among other things, implement the SIP.

(2) Conflict of interest provisions—Section 128

Section 110(a)(2)(E) also provides that the state must meet the requirements of section 128, relating to representation on state boards and conflicts of interest by members of such boards. We note that this particular provision is not related to promulgation or revision of any NAAQS, and we have not determined that Kansas must show specifically that it meets this requirement with respect to the ozone infrastructure SIP for the 1997 standards. However, the following discussion shows how Kansas generally meets the requirements of Section 128.

Section 128 requires that a SIP-implementing body which approves permits or enforcement orders under the Act must have at least a majority of members who represent the public interest and do not derive a “significant portion” of income from entities or individuals subject to permits and enforcement orders under the Act. In addition, section 128 requires that members of such a body or the agency head with similar authorities adequately disclose any potential conflicts of interest.

Chapter 46, Article 2 (State Governmental Ethics) of the KSA specifies ethics requirements for all state officers and employees, including members of KDHE's Bureau of Air and Radiation. These requirements address the requirements contained in section 128 of the CAA. For instance, KSA Section 46-235 states that no state officer or employee shall accept compensation for performance of official duties, other than that to which such person is entitled for such performance. KSA Section 46-236 states that no state officer or employee shall solicit any economic opportunity, gift, favor, service, etc. from any person known to have a special interest in influencing the performance of the official duties of such officer or employee. KSA Section 46-248 requires that state officers (such as the Secretary), employees and members of boards, councils and commissions under the jurisdiction of the head of any state agency must file “statements of substantial interest,” disclosing the nature of any financial interest(s) he or she may have.

(3) With respect to assurances that the state has responsibility to implement the SIP when it authorizes local or other agencies to carry out portions of the plan, KSA Section 65-3005(a)(8) gives the Secretary the authority to encourage local units of government to handle air pollution problems within their own jurisdictions and to provide technical and consultative assistance therefor. The Secretary may enter into agreements with local units of government to administer all or part of the provisions of the Kansas Air Quality Act in the units' respective jurisdictions. In fact, KSA Section 65-3016 allows for cities and/or counties (or combinations thereof) to form local air quality conservation authorities which will then have the authority to enforce air quality rules and regulations adopted by the Secretary and adopt any additional rules, regulations and standards as needed to maintain satisfactory air quality within their jurisdictions.

However, the Kansas statutes also retain authority in the Secretary to carry out the provisions of state air pollution control law. KSA Section 65-3003 specifically places responsibility for air quality conservation and control of air pollution with the Secretary. The Secretary shall then administer the Kansas Air Quality Act through the Division of Environment. As an example of this retention of authority, KSA Section 65-3016 only allows for the formation of local air quality conservation authorities with the approval of the Secretary. In addition, although these authorities can adopt additional air quality rules, regulations and standards, they may only do so if those rules, regulations and standards are in compliance with those set by the Secretary. Currently, KDHE oversees the following local agencies that implement that Kansas Air Quality Act: The City of Wichita Department of Environmental Services, Johnson County Environmental Department, Shawnee County Health Agency, and Unified Government of Wyandotte County, Kansas City-Kansas Health Department.

Based on the foregoing, EPA believes that Kansas has the adequate infrastructure needed to address section 110(a)(2)(E) for the 1997 8-hour ozone NAAQS.

(F) Stationary source monitoring system: Section 110(a)(2)(F) requires states to establish a system to monitor emissions from stationary sources and to submit periodic emission reports. That section also requires that the state correlate the source reports with emission limitations or standards established under the Act and make reports available for public inspection.

To address this element, KSA Section 65-3007 gives the Secretary the authority to classify air contaminant sources which, in his or her judgment, may cause or contribute to air pollution. The Secretary shall require air contaminant emission sources to monitor emissions, operating parameters, ambient impact of any source emissions, and any other parameters deemed necessary. Furthermore, the Secretary may require these emissions sources to keep records and make reports consistent with the purposes of the Kansas Air Quality Act.

In addition, KAR 28-19-12(A) states that KDHE may make any person responsible for the operation of an emissions source to make or have tests made to determine the rate of contaminant emissions from the source whenever it has reason to believe that existing emissions exceed limitations. At the same time, KDHE may also conduct its own tests of emissions from any source. The Kansas regulations also require that all Class I operating permits include requirements for monitoring of emissions. See KAR 28-19-512(a)(9).

Kansas makes all monitoring reports (as well as compliance plans and compliance certifications) submitted as part of Class I or Class II permit application publicly available. See KSA Section 65-3015(a); KAR 28-19-204(c)(6). KDHE maintains a database with emissions data for more than 900 stationary source facilities in Kansas. See http://www.kdheks.gov/emission/data.html. KDHE uses this information to track progress towards maintaining the NAAQS, developing control and maintenance strategies, identifying sources and general emission levels, and determining compliance with emission regulations and additional EPA requirements. Although the Kansas statutes allow a person to request that some information that is reported to KDHE be regarded and treated as confidential on the grounds that it constitutes trade secrets, emissions data is specifically excluded from this protection. See KSA Section 65-3015(b).

EPA believes that Kansas has the adequate infrastructure needed to address section 110(a)(2)(F) for the 1997 8-hour ozone NAAQS.

(G) Emergency authority: Section 110(a)(2)(G) requires states to provide for authority to address activities causing imminent and substantial endangerment to public health or welfare or the environment (comparable to the authorities provided in Section 303 of the Act), including contingency plans to implement the emergency authorities.

KSA Section 65-3012(a) states that whenever the Secretary receives evidence that emissions from an air pollution source or combination of sources presents an imminent and substantial endangerment to public health or welfare or to the environment, he or she may issue a temporary order directing the owner or operator, or both, to take such steps as necessary to prevent the act or eliminate the practice. The Secretary may then follow this up by commencing an action in the district court to enjoin these acts or practices.

KAR 28-19-56 allows the director of the division of environment to proclaim an air pollution alert, air pollution warning, or air pollution emergency whenever he or she determines that the accumulation of air contaminants at any sampling location has attained levels which could, if such levels are sustained or exceeded, threaten the public health. KAR 28-19-57 imposes restrictions that apply to emission sources in the event one of these three air pollution episode statuses is declared. Any person responsible for the operation of a source of air contamination adjudged to be of major concern with respect to the possible implementation of air pollution emergency episode control procedures either because of the nature or the quantity of its emissions must, at the request of KDHE, prepare an emergency episode plan to be implemented in the event that such an episode is declared. KAR 28-19-58.

EPA believes that the Kansas SIP adequately addresses section 110(a)(2)(G) for the 1997 8-hour ozone NAAQS.

(H) Future SIP revisions : Section 110(a)(2)(H) requires states to have the authority to revise their SIPs in response to changes in the NAAQS, availability of improved methods for attaining the NAAQS, or in response to an EPA finding that the SIP is substantially inadequate to attain the NAAQS.

KSA Section 65-3005(b) specifically states that it is the policy of the state of Kansas to regulate the air quality of the state and implement laws and regulations that are applied equally and uniformly throughout the state and consistent with that of the Federal government. Therefore, the Secretary has the authority to promulgate rules and regulations to ensure that Kansas is and remains in compliance with the provisions of the Federal CAA. KSA Section 65-3005(b)(1).

As discussed previously, KSA Section 65-3005(a)(1) provides authority to the Secretary to adopt, amend and repeal rules and regulations implementing the Kansas Air Quality Act. The Secretary also has the authority to establish ambient air quality standards for the state of Kansas. KSA Section 65-3005(a)(12). Therefore, as a whole, the Secretary has the authority to revise rules as necessary to respond to any necessary changes in the NAAQS.

EPA believes that Kansas has the adequate authority to address section 110(a)(2)(H) for the 1997 8-hour ozone NAAQS.

(I) Nonattainment areas: Section 110(a)(2)(I) requires that in the case of a plan or plan revision for areas designated as nonattainment areas, states must meet applicable requirements of Part D of the Act, relating to SIP requirements for designated nonattainment areas.

This section is currently not applicable to Kansas because all areas of Kansas are currently in attainment with the NAAQS. Kansas previously had one ozone nonattainment area in the Kansas portion of the Kansas City metropolitan area; however, it was later redesignated as being in attainment. Nevertheless, EPA notes that the Kansas regulations have provisions in place which address construction or modification of sources in nonattainment areas, and that it has regulations in place for control of VOC emissions in the former nonattainment area. See KAR Section 28-19-16 through 28-19-16m, and KAR 28-19-61 through 28-19-77. These regulations are contained in the Federally approved SIP.

EPA has not addressed section 110(a)(2)(I) in its recent infrastructure SIP guidance because Part D SIPs are due on a different schedule than the infrastructure SIP submittal schedule. (See, e.g., the infrastructure SIP guidance for the revised lead standard, 73 FR 67034, n. 113, Nov. 12, 2008, and the infrastructure SIP guidance for the revised NO 2 standards, 75 FR 6523, n. 27, Feb. 9, 2010.) Therefore, this proposal does not address section 110(a)(2)(I). EPA will take action on any part D nonattainment plans through a separate rulemaking.

(J) Consultation with government officials, Public Notification, PSD and visibility protection: Section 110(a)(2)(J) requires SIPs to meet the applicable requirements of the following CAA provisions: (1) Section 121, relating to interagency consultation regarding certain CAA requirements; (2) section 127, relating to public notification of NAAQS exceedances and related issues; and (3) Part C of the Act, relating to prevention of significant deterioration of air quality and visibility protection.

(1) With respect to interagency consultation, KSA Section 65-3005(14) gives the Secretary the authority to advise, consult and cooperate with other agencies of the state, local governments, other states, interstate and interlocal agencies, and the Federal government. In addition, and as an example, the Kansas regulations require that KDHE consult with other agencies—such as the Kansas Department of Transportation, Wyandotte County (KS) Health Department, Johnson County (KS) Environmental Department Missouri Department of Natural Resources, Missouri Department of Transportation, the Federal Highway Administration of the U.S. Department of Transportation, among others—for all matters pertaining to transportation conformity determinations. KAR 28-19-801(d). 11 Furthermore, as noted in the discussion on section 110(a)(2)(D), Kansas' regulations require that whenever it receives a construction permit application for a new source or a modification, KDHE must notify state and local air pollution control agencies, as well as regional land use planning agencies and any state, Federal, or Indian land managers whose lands will be affected by emissions from the new source or modification. See KAR 28-19-350(k)(2).

(2) With respect to the requirements for public notification in CAA section 127, KAR 28-19-56 contains provisions that allow the director of the division of environment to proclaim an air pollution alert, air pollution warning, or air pollution emergency status whenever he or she determines that the accumulation of air contaminants at any sampling location has attained levels which could, if such levels are sustained or exceeded, threaten the public health. If this occurs, public notification will occur through local weather bureaus. However, any of these emergency situations can be declared even in the absence of issuance of a high air pollution potential advisory or equivalent advisory from a local weather bureau meteorologist, if deemed necessary to protect the public health.

In addition, information regarding air pollution and related issues, is provided on a KDHE Web site, http://www.kdheks.gov/bar/ . KDHE also prepares an annual report on air quality in the state which is available to the public on its Web site, at http://www.kdheks.gov/bar/air-monitor/index.html . This link also provides information regarding the NAAQS, air pollution sources, and health effects of poor air quality, as well as access to live monitoring data.

(3) With respect to the applicable requirements of Part C, relating to prevention of significant deterioration of air quality and visibility protection, we previously noted in the discussion of section 110(a)(2)(C) (relating to enforcement of control measures) how the Kansas SIP meets the PSD requirements, incorporating the Federal rule by reference. With respect to the visibility component of section 110(a)(2)(J), we reiterate the statutory requirement providing, in relevant part, that each plan must meet the “applicable requirements” of Part C (of Title I of the Act) relating to visibility protection. We note that the other Part C requirements specified in section 110(a)(2)(J) (applicable requirements relating to prevention of significant deterioration of air quality), specifically relate to the 1997 and 2006 NAAQS (as well as other pollutants regulated under the CAA), and a state must be able to implement those requirements with respect to a new or revised NAAQS when promulgated. In contrast to the PSD program, the visibility protection requirements are not directly related to the promulgation of, or revision to, a NAAQS. While the SIP must independently meet the visibility protection requirements of Part C by virtue of the specific SIP requirements in sections 169A and 169B of the Act, EPA believes that the visibility protection requirements are not “applicable requirements” within the meaning of section 110(a)(2)(J) and that the infrastructure SIP is not required to be revised with respect to visibility protection merely due to promulgation of, or revision to, these 1997 ozone NAAQS.

For the reasons stated above, EPA believes that Kansas has met the applicable requirements of section 110(a)(2)(J) for the 1997 8-hour ozone NAAQS in the state.

(K) Air quality and modeling/data : Section 110(a)(2)(K) requires that SIPs provide for performing air quality modeling, as prescribed by EPA, to predict effects on ambient air quality of emissions of any NAAQS pollutant, and for submission of such data to EPA upon request.

Kansas has authority to conduct air quality modeling and report the results of such modeling to EPA. KSA Section 65-3005(a)(9) gives the Secretary the authority to encourage and conduct studies, investigations and research relating to air contamination and air pollution and their causes, effects, prevention, abatement and control. As an example of regulatory authority to perform modeling for purposes of determining NAAQS compliance, the regulations at KAR 28-19-350 incorporate the EPA modeling guidance in 40 CFR Part 51, App. W for the purposes of demonstrating compliance or non-compliance with an NAAQS.

The Kansas statutes and regulations also give KDHE the authority to require that modeling data be submitted for analysis. KSA Section 65-3007(b) gives the Secretary the authority to require air contaminant emission sources to monitor emissions, operating parameters ambient impact of any source emissions or any other parameters deemed necessary. The Secretary may also require these sources to keep records and make reports consistent with the purposes of the Kansas Air Quality Act. These reports could include information as may be required concerning the location, size, and height of contaminant outlets, processes employed, fuels used, and the nature and time periods or duration of emissions, and such information as is relevant to air pollution and available or reasonably capable of being assembled. KSA Section 65-3007(c).

EPA believes that Kansas has the adequate infrastructure needed to address section 110(a)(2)(K) for the 1997 8-hour ozone NAAQS.

(L) Permitting Fees: Section 110(a)(2)(L) requires SIPs to require each major stationary source to pay permitting fees to the permitting authority to cover the cost of reviewing, approving, implementing and enforcing a permit. That section provides that the fee requirement applies until a fee program established by the state pursuant to Title V of the Act, relating to operating permits, is approved by EPA.

KSA Section 65-3008(f) allows the Secretary to fix, charge, and collect fees for construction approvals and permits (and the renewals thereof). KSA Section 65-3024 grants the Secretary the authority to establish annual emissions fees. Fees from the construction permits and approvals are deposited into the Kansas state treasury, while emissions fees are deposited into an air quality fee fund. Moneys in the air quality fee fund can only be used for the purpose of administering the Kansas Air Quality Act.

Kansas' Title V program, found at KAR 28-19-500 to 28-19-564, including the fee program addressing the requirements of the Act and 40 CFR 70.9 relating to Title V fees, was approved by EPA on January 30, 1996 (61 FR 2938). Therefore, EPA believes that the requirements of section 110(a)(2)(L) are met.

(M) Consultation/participation by affected local entities: Section 110(a)(2)(M) requires SIPs to provide for consultation and participation by local political subdivisions affected by the SIP.

KSA Section 65-3005(a)(8)(A) gives the Secretary the authority to encourage local units of government to handle air pollution problems within their respective jurisdictions and on a cooperative basis and to provide technical and consultative assistance therefore. The Secretary may also enter into agreements with local units of government to administer all or part of the provisions on the Kansas Air Quality Act in the units' respective jurisdiction. The Secretary also has the authority to advise, consult, and cooperate with local governments. KSA Section 65-3005(a)(14). He or she may enter into contracts and agreements with local governments as is necessary to accomplish the goals of the Kansas Air Quality Act. KSA Section 65-3005(a)(16).

Currently, KDHE's Bureau of Air and Radiation has signed State and/or Local Agreements with the Department of Air Quality from the Unified Government of Wyandotte County—Kansas City, Kansas; the Wichita Department of Environmental Services; the Shawnee County Health Department, the Johnson County Environmental Department; and the Mid-America Regional Council. These agreements establish formal partnerships between the Bureau of Air and Radiation and these local agencies to work together to develop and annually update strategic goals, objectives and strategies for reducing emissions and improving air quality.

In addition, as previously noted in the discussion about section 110(a)(2)(J), Kansas' statutes and regulations require that KDHE consult with local political subdivisions for the purposes of carrying out its air pollution control responsibilities.

Therefore, EPA believes that Kansas has the adequate infrastructure needed to address section 110(a)(2)(M) for the 1997 8-hour ozone NAAQS.

EPA proposes to approve the State Implementation Plan (SIP) submittal from the state of Kansas which addresses the requirements of Clean Air Act section 110(a)(2) for the 1997 revisions to the National Ambient Air Quality Standards (NAAQS) for ozone. As described above, EPA believes that Kansas has the required infrastructure to address all elements of section 110(a)(2) to ensure that the revised ozone standards are implemented in the state.

We are hereby soliciting comment on this proposed action. Final rulemaking will occur after consideration of any comments.

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, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves 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 Order 12866 (58 FR 51735, October 4, 1993);

• 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 CAA; and

• Does not provide 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).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

The statutory authority for this action is provided by Section 110 of the CAA, as amended (42 U.S.C. 7410).

This action is directed to the public in general, and may be of interest to a wide range of stakeholders including human health, farm worker, agricultural and environmental advocacy groups; the chemical industry; pesticide users; and members of the public interested in the sale, distribution, or use of pesticides. Since others also may be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT .

1. Submitting CBI . Do not submit this information to EPA through regulations.gov or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2. Tips for preparing your comments. When submitting comments, remember to:

i. Identify the document by docket ID number and other identifying information (subject heading, Federal Register date and page number).

ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

iii. Explain fully why you agree or disagree; suggest alternatives and substitute language for your requested changes.

iv. Describe any assumptions and provide any technical information and/or data that you used, as well as the sources of those data.

v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

vi. Provide specific examples to illustrate your concerns and suggest alternatives.

vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

viii. Make sure to submit your comments by the comment period deadline identified.

In December 2009, the Agency received a letter from the Migrant Clinicians Network (MCN), Farmworker Justice, and other farm worker advocacy organizations requesting that EPA require labeling in Spanish, in addition to the current requirement for English, on pesticide products. While this letter focused on farm workers, people in several other types of occupations apply pesticides or are exposed to pesticides routinely, such as lawn and landscape maintenance workers, structural pest control technicians, and commercial and residential cleaning staff. People in these occupations and Spanish-speaking consumers who use pesticide products at home may also be affected by the availability of pesticide labels in Spanish. The Agency is therefore seeking comment on this request as it applies to all of these stakeholders.

Executive Order (EO) 13166 of August 11, 2000, orders federal agencies to improve access to federally conducted and federally assisted programs and activities for persons who, as a result of national origin, are limited in their English proficiency (LEP). The EO further states that, “(in) carrying out this order, agencies shall ensure that stakeholders such as LEP persons and their representative organizations, recipients, and other appropriate individuals or entities, have an adequate opportunity to provide input. This input from stakeholders will assist the agencies in developing an approach to ensuring meaningful access by LEP persons that is practical and effective, fiscally responsible, responsible to the particular circumstances of each agency, and can be readily implemented.” EPA's goals for this Federal Register notice are consistent with EO 13166 in that EPA is seeking public comment on the request for EPA to require that pesticide labels be available in English and Spanish. Input from the public will inform EPA's decision whether a requirement for English and Spanish on pesticide products ensures meaningful access by LEP persons that meets the objectives of this EO.

EPA is treating this letter as a petition and is taking public comment on this request. The letter from the petitioners and EPA's response letter are located in docket EPA-HQ-OPP-2011-0014 associated with this Federal Register notice located at http://www.regulations.gov . The Agency would like the public to comment on the request for requiring labeling in Spanish, including information such as potential benefits, possible disadvantages, the potential scope of a bilingual labeling requirement, and costs. Specific questions the Agency would like the public to consider and respond to on this topic are included below in Section II.G.

Several current EPA regulations and guidance documents contain provisions relevant to the issues raised by the petition. As stated in 40 CFR 156.10(a)(3), “All required label or labeling text shall appear in the English language. However, the Agency may require or the applicant may propose additional text in other languages as is considered necessary to protect the public. When additional text in another language is necessary, all labeling requirements will be applied equally to both the English and other-language versions of the labeling.”

Currently, the Agency allows a pesticide registrant to add labeling in languages other than English. The Office of Pesticide Program's first statement of policy regarding bilingual labeling occurred in Pesticide Registration (PR) Notice 88-06. PR 88-06 was revised by PR 95-2 and PR 98-10. All PR Notices can be found at http://www.epa.gov/PR_Notices/ . PR 98-10 states, “A registrant may provide bilingual labeling on any product without notification. The foreign text must be a true and accurate translation of the English text. Note: Both language versions of the labeling must appear on a container. Foreign text may be used on all or part of the labeling.”

For pesticide products subject to the agricultural Worker Protection Standard (WPS) (40 CFR part 170), EPA requires that certain portions of the pesticide label contain words or phrases in Spanish. EPA regulations at 40 CFR 156.206(e) state:

Agricultural handlers are the agricultural employees responsible for mixing, loading, and applying pesticides. EPA requires that before the handler performs a handling activity, the handler employer ensures that the handler has either read the product labeling or has been informed, in a manner the handler can understand, of all labeling requirements related to safe use of the pesticide. EPA regulations at 40 CFR 170.232(a)(1) state:

These requirements were established to better protect agricultural pesticide handlers covered by the WPS as they mix, load, and apply pesticides.

The Agency recognizes that residents of the United States speak many languages, with a significant proportion of the population being Spanish-speakers. A recently published U.S. Census Bureau American Community Survey report, Language Use in the United States: 2007, found that of the 281 million people in the United States aged 5 and over, 55.4 million people (20% of this population) spoke a language other than English at home. Of these 55.4 million people, 62% (34.5 million) spoke Spanish. For comparison, the second most frequently spoken language was Chinese, with 2.5 million speakers, or 4.5% of people who speak a language other than English at home. Of the 34.5 million people who speak Spanish at home, 52.6% reported that they speak English “very well,” 18.3% reported that they speak English “well,” 18.4% reported that they speak English “not well,” and 10.7% reported that they speak English “not at all” (Shin, Hyon B. and Robert A. Kominski. 2010. Language Use in the United States: 2007, American Community Survey Reports, ACS-12. U.S. Census Bureau, Washington, DC).

Data from the Department of Labor's National Agricultural Workers Survey (NAWS) show that many agricultural handlers (agricultural employees responsible for mixing, loading, and applying pesticides) have limited ability to read English. Over a three-year period, NAWS surveyors conducted nearly 6000 interviews across thirty-one states. Sixteen percent of the respondents identified themselves as “handlers,” that is, crop workers who had mixed, loaded, or applied pesticides in the previous twelve months. Fifty-three percent of handlers report their dominant language as Spanish, and 46% of handlers said that their dominant language is English. Of the handlers whose dominant language was Spanish, 13% reported that they read English “well,” 11% reported that they read English “somewhat,” 33% reported that they read English “a little,” and 43% reported that they read English “not at all.” In contrast, 65% of handlers whose dominant language was Spanish reported that they read Spanish “well.” (National Agricultural Workers Survey, public data for 1989-2009: http://www.doleta.gov/agworker/naws.cfm ). There may be bias in these data, as it has been noted that self-reported estimates of reading skills may be biased towards the high-end, as people often overstate their abilities in interviews (Donaldson, Stewart I. Understanding Self-Report Bias in Organizational Behavior Research, Journal of Business and Psychology, Vol. 17, No. 2, Winter 2002).

The National Agricultural Workers Survey reports that the average highest grade of education for all handlers (both Spanish and English-speaking) was tenth grade. A 1994 study, published in the Journal of the American Optometric Association, found that an 11th grade cognitive reading level is required to understand a pesticide label. This suggests that although handlers may be relatively skilled Spanish readers, they may not be able to fully comprehend the label material.

People apply pesticides in and around their homes to control a variety of pests. One type of product used is total release foggers, also known as “bug bombs.” These pesticide products contain aerosol propellants and release their contents as a concentrated spray to fumigate an area. To ensure adequate protection of human health and the environment with respect to fogger use, EPA is working with stakeholders to make improvements to these product labels, including the use of plain language, the addition of pictograms and door hang-tags, and the provision that certain label statements appear in Spanish as well as English.

Agricultural workers can be exposed to pesticides through their work activities. These include farm workers, who cultivate and harvest crops treated with pesticides, and agricultural pesticide handlers, who mix, load and apply pesticides to protect crops. The WPS provides protections for both agricultural workers and handlers. For farm workers, who are exposed to pesticides through contact with treated crops but do not handle pesticides directly, the WPS establishes rules that agricultural employers must follow to minimize risks from pesticide exposure, such as those discussed in Section II B.

The state of California reviews all marketed labels as they appear on the container, whereas EPA reviews a text-only version of the label that contains all approved information but not necessarily in the format in which it will be presented in the marketplace. Some marketed labels include full Spanish translations for home garden products or antimicrobial products, and all agricultural pesticides under the purview of the WPS include the required WPS Spanish statements (40 CFR 156.206(e)).

In Puerto Rico, restricted use pesticides (RUPs) and pesticides registered to meet Special Local Needs (SLNs) must include labeling in Spanish (Puerto Rico Pesticide Act Part II, Section 4(D)(6)(a) and Part II Section 4(G)(3)). The pesticide dealer is required to provide the supplemental Spanish labeling to the buyer. The following portions of the label are required to be translated into Spanish:

1. The precautionary statement, “Keep out of reach of children;”

2. Precautionary statements to prevent injury to humans, vertebrate animals, useful vegetation, and useful invertebrate animals, among others, and those statements required by the WPS, Endangered Species Act, and other statutes;

3. Directions for use; and

4. Pesticide use classification.

In Canada, all pesticide products produced or sold domestically require labels in both English and French.

In considering this petition for bilingual labeling, the Agency is assessing the potential scope of such a requirement. EPA is considering whether the proposed bilingual labeling would improve safety and what potential effects it might have on industry and the enforcement community. Labels in English and Spanish could be required for all, or a subset of, pesticide products. Below are some potential options for bilingual labeling.

1. Certain types of pesticide products: Bilingual labeling could be required for agricultural pesticide products, consumer pesticide products, fumigant products, or some other classification of product.

2. Certain use sites: If it is determined that labeling in Spanish would be beneficial for a specific use site or commodity, products used on that use site could be required to have bilingual labeling.

3. Products containing particular active ingredients: Another option could be to require the products with certain active ingredients to have labeling in Spanish; therefore, all products containing chemical X could require bilingual labels.

4. Products of particular acute toxicity categories: Products with more toxic acute toxicity categories (Categories I or II) could require bilingual labeling.

5. Either entire labels or portions of pesticide product labels could be required in English and Spanish. For example, the Directions for Use section of the product labeling could be required to be bilingual, or labeling statements dealing with worker protection, such as the personal protective equipment labeling, could be required to be in both Spanish and English. Other portions of the label that could be required to be in both languages include the general labeling requirements, the ingredient statement, precautionary labeling, environmental hazards, physical/chemical hazards, labeling claims, and company name and address, among others.

The Agency acknowledges that there could be disadvantages or unintended consequences to a bilingual label recommendation or requirement, and invites public comment on the petition. The State FIFRA Issues Research and Evaluation Group (SFIREG) Pesticide Operations and Management (POM) committee submitted a letter to EPA in December 2010 outlining several concerns the committee has regarding the inclusion of labeling in Spanish on pesticide products. The December 2010 SFIREG POM letter is available in the docket. EPA is dedicated to working with SFIREG and all stakeholders to obtain information that will inform a decision on the petition for Spanish labeling of pesticide products.

EPA invites all members of the public to post comments on this Notice and the petition it addresses. Specifically, EPA would like the commenter to address the following questions. EPA also invites all interested parties to comment on any other aspects of this petition's proposal that are not directly addressed by a question below.

For the General Public:

1. Language characteristics vary by culture, region, and other factors. How could EPA ensure that Spanish text on pesticide product labels would be understood by all potential Spanish-speaking users?

2. Labeling in Spanish could potentially be required for all pesticide products, for a subset of pesticide products, or for a portion of the product label as described in section II.F. If the Agency concluded that translation of a portion or portions of the label were appropriate, which portions of the pesticide label would it be most beneficial to have in Spanish, and why? If the Agency were to limit the requirement for translation to only certain products, which products should be considered, and why? ( Note: Please see the sample label in the docket to consider the different sections of a pesticide label.)

3. Are there languages other than Spanish and English that EPA should consider for inclusion on pesticide labels? Which languages? Please explain your reasoning for including a language other than Spanish or English on pesticide labels, and cite documents that would further bolster your suggestion.

For People Exposed to Pesticides:

Farm workers, lawn and landscape maintenance workers, structural pest control technicians, commercial and residential cleaning staff, residential users of pesticides, children, pregnant or nursing women, older adults, others and advocacy groups:

4. Please describe how having labels available in English and Spanish could increase or decrease pesticide user safety.

5. How do you currently obtain information in Spanish regarding a pesticide product?

6. Please describe how farm workers, their families, and others exposed to pesticides could benefit from this proposal.

7. Would this proposal affect your day-to-day work? If so, how?

8. Which parts of pesticide labeling, if any, would be most valuable to have translated into Spanish, and why? ( Note: Please see the sample label in the docket to consider the different sections of a pesticide label.)

9. Would having a Spanish translation of labeling be more important for some types of products than for others? Please describe why this would be so. And if so, how should EPA select products that would bear bilingual labeling?

10. What effect would the availability of bilingual labeling have on users' understanding of label text?

11. Would pictograms or other non-language methods of communication be beneficial for communication of labeling requirements?

For Industry:

12. Do you currently sell or distribute any pesticides with Spanish labeling (other than as required by 40 CFR 156.206)? If so, why have you decided to do so and what effects has the use of Spanish labeling had on the marketing or safety of using these products? Can you quantify or give examples of any added costs or benefits that have resulted from providing your products' labels in English and Spanish?

13. What additional economic costs and/or benefits would you anticipate from having your products' labels available in Spanish as well as English? Costs might include translation, printing, or packaging. Benefits might include improved market penetration or improved customer good will. Besides any increased monetary costs, would there be other obstacles to printing bilingual labeling on your pesticide products?

14. How could electronic media be used to facilitate distribution of bilingual or multilingual labeling?

15. Apart from bilingual labeling, what past and current efforts have you made to communicate with customers or potential pesticide users who do not speak or read English fluently? What have you found to be effective or ineffective?

16. If you provide Spanish labeling, do you provide it on products nation-wide or only in targeted regions? Why?

17. How could EPA implement the petitioners' proposal or a version of it efficiently and equitably?

18. Please explain whether there are any portions of a product's labeling that would not need to appear in both languages.

For the State Pesticide Regulatory Community and the Enforcement Community:

19. Are there state or local laws that conflict with the proposed bilingual labeling?

20. What potential benefits or obstacles would a federal recommendation or requirement for bilingual labeling pose to the state regulation of pesticide products?

21. What potential benefits would bilingual labeling provide and what potential costs or obstacles would bilingual labeling pose to enforcement activities?

22. Do you know of any inspection or enforcement actions involving bilingually labeled products where the existence of two languages on the label has compromised bringing the action to closure?

23. Do you know of any enforcement actions that have been taken because of, or compromised by, inaccuracies in labeling translation?

24. Do you know of misuse incidents, poisonings, or other mishaps for which the lack of availability of bilingual labels may have been a contributing factor?

25. Would a requirement that pesticides bear bilingual labeling increase or decrease the ability of people to use pesticides safely and effectively? Why?

26. If pesticide products are required to carry labeling in Spanish, what effects, if any, would you anticipate on state pesticide applicator certification programs?

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT .

1. Submitting CBI. Do not submit this information to EPA through regulations.gov or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2. Tips for preparing your comments. When submitting comments, remember to:

i. Identify the document by docket ID number and other identifying information (subject heading, Federal Register date and page number).

ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

iv. Describe any assumptions and provide any technical information and/or data that you used.

v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

vi. Provide specific examples to illustrate your concerns and suggest alternatives.

vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

viii. Make sure to submit your comments by the comment period deadline identified.

In this action, EPA is proposing to amend the propylene oxide tolerance (40 CFR 180.491) on “nut, tree, group 14” to read “nutmeat, processed, except peanuts.” A final rule published in the Federal Register of September 24, 2008 (73 FR 54954) (FRL-8382-2). EPA took the opposite action—amending the propylene oxide tolerance by replacing “nutmeat, processed, except peanuts” with “nut, tree, group 14.” EPA explained that its 2008 action was taken to “conform” the commodity terms in the propylene oxide tolerances with “current Agency practice.” A proposed rule was published in the Federal Register of June 4, 2008 (73 FR 31788, 317990) (FRL-8363-9). The Reregistration Eligibility Decision for propylene oxide further explained that although “no change to the current tolerance level is required for nutmeat (processed, except peanuts),” * * * “corrections need to be made to some of the existing commodity definitions” including changing the nutmeats tolerance to a tree nut group tolerance. EPA, published a notice, Reregistration Eligibility Decision for Propylene Oxide, in the Federal Register of August 9, 2006 (71 FR 45555) (FRL-8066-9).

Despite these explanations that the change to the nutmeats tolerance was a conforming technical correction without substantive effect, the changed tolerance terminology is significantly different than the commodity term it replaced. Crop Group 14 (tree nuts) applies to a specific list of raw nuts. On its face, “nutmeat, processed, except peanuts” applies to all processed nutmeats other than peanuts. Such a substantive change to the scope of a tolerance cannot be effected unless the Agency makes the necessary statutory findings under FFDCA section 408. Because no such findings were made, EPA considers the prior action to have been without effect and the pre-existing tolerance covering “nutmeat, processed, except peanuts” to define the scope of the propylene oxide tolerance as to nuts. Accordingly, EPA is proposing in this action to correct the propylene oxide tolerance in the CFR by returning to the status quo prior to rulemaking of September 24, 2008. Under this proposal, the nutmeat tolerance for propylene oxide would read “nutmeat, processed, except peanuts,” which is exactly as it did prior to the September 24, 2008 rulemaking.

EPA requests comment on whether its proposed action adequately addresses the error included in its September 24, 2008 rulemaking.

FFDCA section 408(e)(2) requires a comment period of not less than 60 days on EPA tolerance actions proposed on the Agency's initiative unless EPA “for good cause finds that a shorter comment period would be in the public interest * * *.” EPA has determined that such good cause exists here. The September 2008 rulemaking was intended, among other things, to make a minor, routine change to one of the commodity terms in the propylene oxide tolerance for the purpose of conforming the propylene oxide tolerance to the standard list of commodity terms used by EPA. Due to its own mistake, EPA did not merely make a conforming change but substituted a new commodity term that was not co-extensive with the existing commodity term. This has led to confusion as to the scope of the propylene oxide tolerance and was unfair to propylene oxide registrants who relied on EPA assertions that it was making a technical conforming change. EPA is now proposing to return the CFR to the status quo prior to its error. It is in the public interest to remove the confusion arising from EPA's error with dispatch and thus EPA concludes there is good cause to limit the comment period to 15 days.

This proposed rule amends a tolerance under section 408(d) of FFDCA. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Because this proposed rule has been exempted from review under Executive Order 12866 due to its lack of significance, this proposed rule is not subject to Executive Order 13211, entitled Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001). This proposed rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). Nor does it require any special considerations under Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994); or OMB review or any Agency action under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Pursuant to the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), the Agency hereby certifies that this proposed action will not have significant negative economic impact on a substantial number of small entities. In fact, this rule will have no impact because it merely corrects an error in the propylene oxide tolerance regulation that was inserted in the regulation without proper authority and thus was without legal effect. In addition, the Agency has determined that this action will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This proposed rule directly regulates growers, food processors, food handlers, and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of the FFDCA. For these same reasons, the Agency has determined that this proposed rule does not have any “tribal implications” as described in Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 9, 2000). Executive Order 3175, requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.” This proposed rule will not have substantial direct effects on tribal governments, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this proposed rule.

Therefore, it is proposed that 40 CFR chapter I be amended as follows:

This is a summary of the Commission's Further Notice of Proposed Rulemaking (“FNPRM”) in WT Docket No. 10-61, FCC 11-25, adopted February 22, 2011, and released March 4, 2011. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street, SW., Washington, DC 20554. The complete text may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room Cy-B402, Washington, DC 20554. The full text may also be downloaded at: www.fcc.gov . Alternative formats are available to persons with disabilities by sending an e-mail to fcc504@fcc.gov or by calling the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

1. This is a permit-but-disclose notice and comment rulemaking proceeding. Ex parte presentations are permitted, except during the Sunshine Agenda period, provided they are disclosed as provided in the Commission's Rules.

2. Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using: (1) The Commission's Electronic Comment Filing System (ECFS), (2) the Federal Government's eRulemaking Portal, or (3) by filing paper copies. See Electronic Filing of Documents in Rulemaking Proceedings , 63 FR 24121 (1998).

• Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/ or the Federal eRulemaking Portal: http://www.regulations.gov .

• Paper Filers: Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

• All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St., SW., Room TW-A325, Washington, DC 20554. The filing hours are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building.

• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.

• U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street, SW., Washington DC 20554.

People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an e-mail to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

3. This FNPRM does not contain any proposed information collection(s) subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, it does not contain any new or modified “information collection burden for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

4. As required by the Regulatory Flexibility Act (RFA), the Commission has prepared this present Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities by the policies and rules proposed and set forth in Appendix B. We requent written public comments on this IRFA which must be filed in accordance with the same filing deadlines as the comments on the rest of the FNPRM . The Commission shall send a copy of this FNPRM , including the IRFA, to the Chief Counsel for Advocacy of the Small Business Administration. In addition, a copy of this FNPRM and IRFA (or summaries thereof) will also be published in the Federal Register .

5. Pursuant to §§ 4(i), 4(j), and 303(r) of the Communications Act of 1934, as amended, and 47 U.S.C. 154(i), 154(j), and 303(r), notice is hereby given of the proposed regulatory changes described in the FNPRM , and comment is sought on the proposed regulatory changes as set forth below.

6. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this FNPRM , including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 87 as follows:

On March 1, 2011, the Commercial Vehicle Safety Alliance (CVSA) requested that PHMSA and FMCSA extend the comment period for the Highway-Rail Grade Crossing; Safe Clearance Notice of Proposed Rulemaking, which was published on January 28, 2011 (76 FR 5120), by 60 days. CVSA believes the extension is necessary to gain feedback from its members who will be attending the CVSA Spring Workshop Meeting from April 11-14, 2011.

PHMSA and FMCSA believe that other potential commenters to this rulemaking will benefit from an extension as well, and that 30 days is sufficient time to allow CVSA to gain feedback from its members during its Spring Workshop and prepare its comments. Accordingly, PHMSA and FMCSA reopens the comment period for all comments on the NPRM and its related documents to April 29, 2011.