[Federal Register Volume 78, Number 142 (Wednesday, July 24, 2013)]
[Proposed Rules]
[Pages 44487-44494]
[FR Doc No: 2013-17704]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R03-OAR-2012-0368; FRL-9836-1]

Approval and Promulgation of Air Quality Implementation Plans;
West Virginia; Redesignation of the West Virginia Portion of the
Wheeling, WV-OH 1997 Annual Fine Particulate Matter Nonattainment Area
to Attainment and Approval of the Associated Maintenance Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule; supplemental.

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SUMMARY: EPA is issuing a supplement to its proposed approval of the
State of West Virginia's request to redesignate the West Virginia
portion of the Wheeling, WV-OH fine particulate matter
(PM2.5) nonattainment area (Wheeling Area or Area) to
attainment for the 1997 annual PM2.5 national ambient air
quality standard (NAAQS). This supplemental proposal revises and
expands the basis for proposing approval of the State's request in
light of developments since EPA issued its initial proposal on December
11, 2012. This supplemental proposal addresses the effects of the
decision of the United States Court of Appeals for the District of
Columbia (D.C. Circuit Court) on January 4, 2013 to remand to EPA two
final rules implementing the PM2.5 NAAQS. EPA is seeking
comment only on the issues raised in this supplemental proposal and is
not reopening for comment other issues raised in its prior proposal.

DATES: Written comments must be received on or before August 23, 2013.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2012-0368 by one of the following methods:
    A. www.regulations.gov. Follow the on-line instructions for
submitting comments.
    B. Email<EMAIL_ADDRESS>    C. Mail: EPA-R03-OAR-2012-0368, Cristina Fernandez, Associate
Director, Office of Air Program Planning, Mailcode 3AP30, U.S.
Environmental Protection Agency, Region III, 1650 Arch Street,
Philadelphia, Pennsylvania 19103.
    D. Hand Delivery: At the previously-listed EPA Region III address.
Such deliveries are only accepted during the Docket's normal hours of
operation, and special arrangements should be made for deliveries of
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2012-0368. EPA's policy is that all comments received will be included
in the public docket without change, and may be made available online
at www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or email. The
www.regulations.gov Web site is an ``anonymous access'' system, which
means EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an email comment
directly to EPA without going through www.regulations.gov, your email
address will be automatically captured and included as part of the
comment that is placed in the public docket and made available on the
Internet. If you submit an electronic comment, EPA recommends that you
include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses.
    Docket: All documents in the electronic docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in www.regulations.gov or
in hard copy during normal business hours at the Air Protection
Division, U.S. Environmental Protection Agency, Region III, 1650 Arch
Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal
are available at the West Virginia Department of Environmental
Protection, Division of Air Quality, 601 57th Street SE., Charleston,
West Virginia 25304.

FOR FURTHER INFORMATION CONTACT: Rose Quinto,<PHONE_NUMBER>, or by
email at<EMAIL_ADDRESS>
Table of Contents

I. Background
II. Effect of the January 4, 2013 D.C. Circuit Decision Regarding
the PM2.5 Implementation Under Subpart 4
    A. Background
    B. Supplemental Proposal on This Issue
    1. Applicable Requirements for Purposes of Evaluating the
Redesignation Request
    2. Subpart 4 Requirements and Wheeling Area's Redesignation
Request
    3. Subpart 4 and Control of PM2.5 Precursors
    4. Maintenance Plan and Evaluation of Precursors
III. Ammonia and VOC Comprehensive Emissions Inventory
IV. Summary of Proposed Action
V. Statutory and Executive Order Reviews

I. Background

    On March 8, 2012, the State of West Virginia through the West
Virginia Department of Environmental Protection (WVDEP) formally
submitted a request to redesignate the West Virginia portion of the
Wheeling Area from nonattainment to attainment of the 1997 annual
PM2.5 NAAQS. Concurrently, West Virginia submitted a
maintenance plan for the Area as a SIP revision to ensure continued
attainment throughout the Area over the next 10 years.
    On December 11, 2012 (77 FR 73575), EPA published a notice of
proposed rulemaking (NPR) determining that the Wheeling Area has
attained the 1997 annual PM2.5 NAAQS and that the Area has
met the requirements for redesignation under section 107(d)(3)(E) of
the Clean Air Act (CAA). In the December 11, 2012 NPR, EPA proposed
several actions related to the redesignation of the Area to attainment
for the 1997 annual PM2.5 NAAQS. First, EPA proposed to
approve West Virginia's request to change the legal definition of the
West Virginia portion of the Wheeling Area from nonattainment to
attainment for the

1997 annual PM2.5 NAAQS. Second, EPA proposed to approve the
maintenance plan for the West Virginia portion of the Area as a
revision to the West Virginia SIP because the plan meets the
requirements of section 175A of the CAA. Third, EPA proposed to approve
the insignificance determination for the onroad motor vehicle
contribution of PM2.5, nitrogen oxides (NOX) and
sulfur dioxide (SO2) in the West Virginia portion of the
Area for transportation conformity purposes. Fourth, EPA proposed to
approve the base year emissions inventory for PM2.5
(including condensables), SO2 and NOX emissions.
The emissions cover the general source categories of point sources,
area sources, onroad mobile sources and nonroad mobile sources. EPA
received no comments in response to the December 11, 2012 NPR proposing
approval of the above described redesignation request, maintenance
plan, insignificance determination and the base year emissions
inventory. EPA is not reopening the public comment period to submit
comment on the issues addressed in the December 11, 2012 NPR.
    EPA today is issuing a supplement to its December 11, 2012 NPR.
This supplemental NPR addresses the recent decision of the D.C. Circuit
Court which affects the proposed redesignation and which has arisen
since the issuance of the NPR. The D.C. Circuit Court on January 4,
2013 remanded to EPA two final rules implementing the PM2.5
NAAQS. Therefore, EPA's supplemental proposal revises and expands the
basis for EPA's proposed approval of West Virginia's request to
redesignate the Wheeling Area to attainment for the 1997 annual
PM2.5 NAAQS, in light of this development since EPA's
initial NPR.

II. Effect of the January 4, 2013 D.C. Circuit Decision Regarding the
PM2.5 Implementation Under Subpart 4

A. Background

    On January 4, 2013, in Natural Resources Defense Council v. EPA,
the D.C. Circuit Court remanded to EPA the ``Final Clean Air Fine
Particle Implementation Rule'' (72 FR 20586 April 25, 2007) and the
``Implementation of the New Source Review (NSR) Program for Particulate
Matter Less than 2.5 Micrometers (PM2.5)'' final rule (73 FR
28321, May 16, 2008) (collectively, ``1997 PM2.5
Implementation Rule''). 706 F.3d 428 (D.C. Cir. 2013). The D.C. Circuit
Court found that EPA erred in implementing the 1997 PM2.5
NAAQS pursuant to the general implementation provisions of subpart 1 of
Part D of Title I of the CAA, rather than the particulate-matter-
specific provisions of subpart 4 of Part D of Title I.

B. Supplemental Proposal on This Issue

    In this portion of EPA's supplemental proposal, EPA is soliciting
comment on the limited issue of the effect of the D.C. Circuit Court's
January 4, 2013 ruling on the proposed redesignation. As explained
below, EPA is proposing to determine that the D.C. Circuit Court's
January 4, 2013 decision does not prevent EPA from redesignating the
Wheeling Area to attainment. Even in light of the D.C. Circuit Court's
decision, redesignation for this Area is appropriate under the CAA and
EPA's longstanding interpretations of the CAA's provisions regarding
redesignation. EPA first explains its longstanding interpretation that
requirements that are imposed, or that become due, after a complete
redesignation request is submitted for an area that is attaining the
standard, are not applicable for purposes of evaluating a redesignation
request. Second, EPA then shows that, even if EPA applies the subpart 4
requirements to the Wheeling Area redesignation request and disregards
the provisions of its 1997 PM2.5 implementation rule
recently remanded by the D.C. Circuit Court, the State's request for
redesignation of this Area still qualifies for approval. EPA's
discussion takes into account the effect of the D.C. Circuit Court's
ruling on the Area's maintenance plan, which EPA views as approvable
when subpart 4 requirements are considered.
1. Applicable Requirements for Purposes of Evaluating the Redesignation
Request
    With respect to the 1997 PM2.5 Implementation Rule, the
D.C. Circuit Court's January 4, 2013 ruling rejected EPA's reasons for
implementing the PM2.5 NAAQS solely in accordance with the
provisions of subpart 1, and remanded that matter to EPA, so that it
could address implementation of the 1997 PM2.5 NAAQS under
subpart 4 of Part D of the CAA, in addition to subpart 1. For the
purposes of evaluating West Virginia's redesignation request for the
Wheeling Area, to the extent that implementation under subpart 4 would
impose additional requirements for areas designated nonattainment, EPA
believes that those requirements are not ``applicable'' for the
purposes of section 107(d)(3)(E) of the CAA, and thus EPA is not
required to consider subpart 4 requirements with respect to the
Wheeling Area redesignation. Under its longstanding interpretation of
the CAA, EPA has interpreted section 107(d)(3)(E) to mean, as a
threshold matter, that the part D provisions which are ``applicable''
and which must be approved in order for EPA to redesignate an area
include only those which came due prior to a state's submittal of a
complete redesignation request. See ``Procedures for Processing
Requests to Redesignate Areas to Attainment,'' Memorandum from John
Calcagni, Director, Air Quality Management Division, September 4, 1992
(Calcagni memorandum). See also ``State Implementation Plan (SIP)
Requirements for Areas Submitting Requests for Redesignation to
Attainment of the Ozone and Carbon Monoxide (CO) National Ambient Air
Quality Standards (NAAQS) on or after November 15, 1992,'' Memorandum
from Michael Shapiro, Acting Assistant Administrator, Air and
Radiation, September 17, 1993 (Shapiro memorandum); Final Redesignation
of Detroit-Ann Arbor, (60 FR 12459, 12465-66, March 7, 1995); Final
Redesignation of St. Louis, Missouri, (68 FR 25418, 25424-27, May 12,
2003); Sierra Club v. EPA, 375 F.3d 537, 541 (7th Cir. 2004) (upholding
EPA's redesignation rulemaking applying this interpretation and
expressly rejecting Sierra Club's view that the meaning of
``applicable'' under the statute is ``whatever should have been in the
plan at the time of attainment rather than whatever actually was in the
plan and already implemented or due at the time of attainment'').\1\ In
this case, at the time that West Virginia submitted its redesignation
request, requirements under subpart 4 were not due, and indeed, were
not yet known to apply.
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    \1\ Applicable requirements of the CAA that come due subsequent
to the area's submittal of a complete redesignation request remain
applicable until a redesignation is approved, but are not required
as a prerequisite to redesignation. Section 175A(c) of the CAA.
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    EPA's view that, for purposes of evaluating the Wheeling Area
redesignation, the subpart 4 requirements were not due at the time West
Virginia submitted the redesignation request is in keeping with the
EPA's interpretation of subpart 2 requirements for subpart 1 ozone
areas redesignated subsequent to the D.C. Circuit Court's decision in
South Coast Air Quality Mgmt. Dist. v. EPA, 472 F.3d 882 (D.C. Cir.
2006). In South Coast, the D.C Circuit Court found that EPA was not
permitted to implement the 1997 8-hour ozone standard solely under
subpart 1, and held that EPA was required under the statute to
implement

the standard under the ozone-specific requirements of subpart 2 as
well. Subsequent to the South Coast decision, in evaluating and acting
upon redesignation requests for the 1997 8-hour ozone standard that
were submitted to EPA for areas under subpart 1, EPA applied its
longstanding interpretation of the CAA that ``applicable
requirements,'' for purposes of evaluating a redesignation, are those
that had been due at the time the redesignation request was submitted.
See, e.g., Proposed Redesignation of Manitowoc County and Door County
Nonattainment Areas (75 FR 22047, 22050, April 27, 2010). In those
actions, EPA therefore did not consider subpart 2 requirements to be
``applicable'' for the purposes of evaluating whether the area should
be redesignated under section 107(d)(3)(E) of the CAA.
    EPA's interpretation derives from the provisions of section
107(d)(3) of the CAA. Section 107(d)(3)(E)(v) states that, for an area
to be redesignated, a state must meet ``all requirements `applicable'
to the area under section 110 and part D.'' Section 107(d)(3)(E)(ii)
provides that EPA must have fully approved the ``applicable'' SIP for
the area seeking redesignation. These two sections read together
support EPA's interpretation of ``applicable'' as only those
requirements that came due prior to submission of a complete
redesignation request.
    First, holding states to an ongoing obligation to adopt new CAA
requirements that arose after the state submitted its redesignation
request, in order to be redesignated, would make it problematic or
impossible for EPA to act on redesignation requests in accordance with
the 18-month deadline Congress set for EPA action in section
107(d)(3)(D) of the CAA. If ``applicable requirements'' were
interpreted to be a continuing flow of requirements with no reasonable
limitation, states, after submitting a redesignation request, would be
forced continuously to make additional SIP submissions that in turn
would require EPA to undertake further notice-and-comment rulemaking
actions to act on those submissions. This would create a regime of
unceasing rulemaking that would delay action on the redesignation
request beyond the 18-month timeframe provided by the CAA for this
purpose.
    Second, a fundamental premise for redesignating a nonattainment
area to attainment is that the area has attained the relevant NAAQS due
to emission reductions from existing controls. Thus, an area for which
a redesignation request has been submitted would have already attained
the NAAQS as a result of satisfying statutory requirements that came
due prior to the submission of the request. Absent a showing that
unadopted and unimplemented requirements are necessary for future
maintenance, it is reasonable to view the requirements applicable for
purposes of evaluating the redesignation request as including only
those SIP requirements that have already come due. These are the
requirements that led to attainment of the NAAQS. To require, for
redesignation approval, that a state also satisfy additional SIP
requirements coming due after the state submits its complete
redesignation request, and while EPA is reviewing it, would compel the
state to do more than is necessary to attain the NAAQS, without a
showing that the additional requirements are necessary for maintenance.
    In the context of the Wheeling redesignation, the timing and nature
of the D.C. Circuit Court's January 4, 2013 decision in NRDC v. EPA
compound the consequences of imposing requirements that come due after
the redesignation request is submitted. West Virginia submitted its
redesignation request on March 8, 2012, but the D.C. Circuit Court did
not issue its decision remanding EPA's 1997 PM2.5
implementation rule concerning the applicability of the provisions of
subpart 4 until January 2013.
    To require West Virginia's fully-completed and long-pending
redesignation request to comply now with requirements of subpart 4 that
the D.C. Circuit Court announced only on January 4, 2013, would be to
give retroactive effect to such requirements when the State had no
notice that it was required to meet them. The D.C. Circuit Court
recognized the inequity of this type of retroactive impact in Sierra
Club v. Whitman, 285 F.3d 63 (D.C. Cir. 2002),\2\ where it upheld the
D.C. District Court's ruling refusing to make retroactive EPA's
determination that the St. Louis area did not meet its attainment
deadline. In that case, petitioners urged the D.C. Circuit Court to
make EPA's nonattainment determination effective as of the date that
the statute required, rather than the later date on which EPA actually
made the determination. The D.C. Circuit Court rejected this view,
stating that applying it ``would likely impose large costs on States,
which would face fines and suits for not implementing air pollution
prevention plans . . . even though they were not on notice at the
time.'' Id. at 68. Similarly, it would be unreasonable to penalize West
Virginia by rejecting its redesignation request for an area that is
already attaining the 1997 PM2.5 standard and that met all
applicable requirements known to be in effect at the time of the
request. For EPA now to reject the redesignation request solely because
the state did not expressly address subpart 4 requirements of which it
had no notice, would inflict the same unfairness condemned by the D.C.
Circuit Court in Sierra Club v. Whitman.
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    \2\ Sierra Club v. Whitman was discussed and distinguished in a
recent D.C. Circuit Court decision that addressed retroactivity in a
quite different context, where, unlike the situation here, EPA
sought to give its regulations retroactive effect. National
Petrochemical and Refiners Ass'n v. EPA. 630 F.3d 145, 163 (D.C.
Cir. 2010), rehearing denied 643 F.3d 958 (D.C. Cir. 2011), cert
denied 132 S. Ct. 571 (2011).
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2. Subpart 4 Requirements and Wheeling Area's Redesignation Request
    Even if EPA were to take the view that the D.C. Circuit Court's
January 4, 2013 decision requires that, in the context of pending
redesignations, subpart 4 requirements were due and in effect at the
time the State submitted its redesignation request, EPA proposes to
determine that the Wheeling Area still qualifies for redesignation to
attainment. As explained below, EPA believes that the redesignation
request for the Wheeling Area, though not expressed in terms of subpart
4 requirements, substantively meets the requirements of that subpart
for purposes of redesignating the area to attainment.
    With respect to evaluating the relevant substantive requirements of
subpart 4 for purposes of redesignating the Wheeling Area, EPA notes
that subpart 4 incorporates components of subpart 1 of part D, which
contains general air quality planning requirements for areas designated
as nonattainment. See Section 172(c). Subpart 4 itself contains
specific planning and scheduling requirements for PM10 \3\
nonattainment areas, and under the D.C. Circuit Court's January 4, 2013
decision in NRDC v. EPA, these same statutory requirements also apply
for PM2.5 nonattainment areas. EPA has longstanding general
guidance that interprets the 1990 amendments to the CAA, making
recommendations to states for meeting the statutory requirements for
SIPs for nonattainment areas. See, ``State Implementation Plans;
General Preamble for the Implementation of Title I of the Clear Air Act
Amendments of 1990,'' (57 FR 13498, April 16, 1992) (the ``General
Preamble''). In the General Preamble, EPA discussed the relationship of
subpart 1 and subpart 4

SIP requirements, and pointed out that subpart 1 requirements were to
an extent ``subsumed by, or integrally related to, the more specific
PM10 requirements.'' (57 FR 13538, April 16, 1992). EPA's
December 11, 2012 NPR for this redesignation action addressed how the
Wheeling Area meets the requirements for redesignation under subpart 1.
These subpart 1 requirements include, among other things, provisions
for attainment demonstrations, reasonably available control measures
(RACM), reasonable further progress (RFP), emissions inventories, and
contingency measures.
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    \3\ PM10 refers to particulates nominally 10
micrometers in diameter or smaller.
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    For the purposes of this redesignation, in order to identify any
additional requirements which would apply under subpart 4, EPA is
considering the Wheeling Area to be a ``moderate'' PM2.5
nonattainment area. Under section 188 of the CAA, all areas designated
nonattainment areas under subpart 4 would initially be classified by
operation of law as ``moderate'' nonattainment areas, and would remain
moderate nonattainment areas unless and until EPA reclassifies the area
as a ``serious'' nonattainment area. Accordingly, EPA believes that it
is appropriate to limit the evaluation of the potential impact of
subpart 4 requirements to those that would be applicable to moderate
nonattainment areas. Sections 189(a) and (c) of subpart 4 apply to
moderate nonattainment areas and include the following: (1) An approved
permit program for construction of new and modified major stationary
sources (section 189(a)(1)(A)); (2) an attainment demonstration
(section 189(a)(1)(B)); (3) provisions for RACM (section 189(a)(1)(C));
and (4) quantitative milestones demonstrating RFP toward attainment by
the applicable attainment date (section 189(c)).
    The permit requirements of subpart 4, as contained in section
189(a)(1)(A), refer to and apply the subpart 1 permit provisions
requirements of sections 172 and 173 to PM10, without adding
to them. Consequently, EPA believes that section 189(a)(1)(A) does not
itself impose for redesignation purposes any additional requirements
for moderate areas beyond those contained in subpart 1.\4\ In any
event, in the context of redesignation, EPA has long relied on the
interpretation that a fully approved nonattainment new source review
program is not considered an applicable requirement for redesignation,
provided the area can maintain the standard with a prevention of
significant deterioration (PSD) program after redesignation. A detailed
rationale for this view is described in a memorandum from Mary Nichols,
Assistant Administrator for Air and Radiation, dated October 14, 1994,
entitled, ``Part D New Source Review Requirements for Areas Requesting
Redesignation to Attainment.'' See also rulemakings for Detroit,
Michigan (60 FR 12467-12468, March 7, 1995); Cleveland-Akron-Lorain,
Ohio (61 FR 20458, 20469-20470, May 7, 1996); Louisville, Kentucky (66
FR 53665, October 23, 2001); and Grand Rapids, Michigan (61 FR 31834-
31837, June 21, 1996).
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    \4\ The potential effect of section 189(e) on section
189(a)(1)(A) for purposes of evaluating this redesignation is
discussed below.
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    With respect to the specific attainment planning requirements under
subpart 4,\5\ when EPA evaluates a redesignation request under either
subpart 1 and/or 4, any area that is attaining the PM2.5
standard is viewed as having satisfied the attainment planning
requirements for these subparts. For redesignations, EPA has for many
years interpreted attainment-linked requirements as not applicable for
areas attaining the standard. In the General Preamble, EPA stated that:
``The requirements for RFP will not apply in evaluating a request for
redesignation to attainment since, at a minimum, the air quality data
for the area must show that the area has already attained. Showing that
the State will make RFP towards attainment will, therefore, have no
meaning at that point.'' See General Preamble for the Interpretation of
Title I of the Clean Air Act Amendments of 1990; (57 FR 13498, 13564,
April 16, 1992).
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    \5\ I.e., attainment demonstration, RFP, RACM, milestone
requirements, contingency measures.
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    The General Preamble also explained that: ``[t]he section 172(c)(9)
requirements are directed at ensuring RFP and attainment by the
applicable date. These requirements no longer apply when an area has
attained the standard and is eligible for redesignation. Furthermore,
section 175A for maintenance plans . . . provides specific requirements
for contingency measures that effectively supersede the requirements of
section 172(c)(9) for these areas.'' Id. EPA similarly stated in its
1992 Calcagni memorandum that, ``The requirements for reasonable
further progress and other measures needed for attainment will not
apply for redesignations because they only have meaning for areas not
attaining the standard.''
    It is evident that even if we were to consider the D.C. Circuit
Court's January 4, 2013 decision in NRDC v. EPA to mean that
attainment-related requirements specific to subpart 4 should be imposed
retroactively \6\ and thus are now past due, those requirements do not
apply to an area that is attaining the 1997 PM2.5 standard,
for the purpose of evaluating a pending request to redesignate the area
to attainment. EPA has consistently enunciated this interpretation of
applicable requirements under section 107(d)(3)(E) of the CAA since the
General Preamble was published more than twenty years ago. Courts have
recognized the scope of EPA's authority to interpret ``applicable
requirements'' in the redesignation context. See Sierra Club v. EPA,
375 F.3d 537 (7th Cir. 2004).
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    \6\ As EPA has explained above, we do not believe that the D.C.
Circuit Court's January 4, 2013 decision should be interpreted so as
to impose these requirements on the states retroactively. Sierra
Club v. Whitman, supra.
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    Moreover, even outside the context of redesignations, EPA has
viewed the obligations to submit attainment-related SIP planning
requirements of subpart 4 as inapplicable for areas that EPA determines
are attaining the standard. EPA's prior ``Clean Data Policy''
rulemakings for the PM10 NAAQS, also governed by the
requirements of subpart 4, explain EPA's reasoning. They describe the
effects of a determination of attainment on the attainment-related SIP
planning requirements of subpart 4. See ``Determination of Attainment
for Coso Junction Nonattainment Area,'' (75 FR 27944, May 19, 2010).
See also Coso Junction proposed PM10 redesignation, (75 FR
36023, 36027, June 24, 2010); Proposed and Final Determinations of
Attainment for San Joaquin Nonattainment Area (71 FR 40952, 40954-55,
July 19, 2006; and 71 FR 63641, 63643-47 October 30, 2006). In short,
EPA in this context has also long concluded that to require states to
meet superfluous SIP planning requirements is not necessary and not
required by the CAA, so long as those areas continue to attain the
relevant NAAQS.
    In its December 11, 2012 NPR for this action, EPA proposed to
determine that the Wheeling Area has attained the 1997 PM2.5
NAAQS and therefore meets the attainment-related plan requirements of
subpart 1. Under its longstanding interpretation, EPA is proposing to
determine here that the Area also meets the attainment-related plan
requirements of subpart 4.
    Thus, EPA is proposing to conclude that the requirements to submit
an attainment demonstration under 189(a)(1)(B), a RACM determination
under section 172(c)(1) and section 189(a)(1)(c), and a RFP
demonstration under 189(c)(1) are satisfied for

purposes of evaluating the redesignation request.
3. Subpart 4 and Control of PM2.5 Precursors
    The D.C. Circuit Court in NRDC v. EPA remanded to EPA the two rules
at issue in the case with instructions to EPA to re-promulgate them
consistent with the requirements of subpart 4. The D.C. Circuit Court's
opinion raises the issue of the appropriate approach to addressing
PM2.5 precursors in this and future EPA actions. While past
implementation of subpart 4 for PM10 has allowed for control
of PM10 precursors such as NOX from major
stationary, mobile, and area sources in order to attain the standard as
expeditiously as practicable, CAA section 189(e) specifically provides
that control requirements for major stationary sources of direct
PM10 shall also apply to PM10 precursors from
those sources, except where EPA determines that major stationary
sources of such precursors ``do not contribute significantly to
PM10 levels which exceed the standard in the area.''
    EPA's 1997 PM2.5 Implementation Rule, remanded by the
D.C. Circuit Court, contained rebuttable presumptions concerning
certain PM2.5 precursors applicable to attainment plans and
control measures related to those plans. Specifically, in 40 CFR
51.1002, EPA provided, among other things, that a state was ``not
required to address VOC [and NH3] as . . . PM2.5
attainment plan precursor[s] and to evaluate sources of VOC [and
NH3] emissions in the State for control measures.'' EPA
intended these to be rebuttable presumptions. EPA established these
presumptions at the time because of uncertainties regarding the
emission inventories for these pollutants and the effectiveness of
specific control measures in various regions of the country in reducing
PM2.5 concentrations. EPA also left open the possibility for
such regulation of NH3 and VOC in specific areas where that
was necessary.
    The D.C. Circuit Court in its January 4, 2013 decision made
reference to both section 189(e) and 40 CFR 51.1002, and stated that,
``In light of our disposition, we need not address the petitioners'
challenge to the presumptions in [40 CFR 51.1002] that volatile organic
compounds and ammonia are not PM2.5 precursors, as subpart 4
expressly governs precursor presumptions.'' NRDC v. EPA, at 27, n.10.
    Elsewhere in the D.C. Circuit Court's opinion, however, the Court
observed: ``NH3 is a precursor to fine particulate matter,
making it a precursor to both PM2.5 and PM10. For
a PM10 nonattainment area governed by subpart 4, a precursor
is presumptively regulated. See 42 U.S.C. 7513a(e) [section 189(e)].''
Id. at 21, n.7.
    For a number of reasons, EPA believes that its proposed
redesignation of the Wheeling Area is consistent with the D.C. Circuit
Court's decision on this aspect of subpart 4. First, while the D.C.
Circuit Court, citing section 189(e), stated that ``for a
PM10 area governed by subpart 4, a precursor is
`presumptively regulated,' '' the D.C. Circuit Court expressly declined
to decide the specific challenge to EPA's 1997 PM2.5
implementation rule provisions regarding NH3 and VOC as
precursors. The D.C. Circuit Court had no occasion to reach whether and
how it was substantively necessary to regulate any specific precursor
in a particular PM2.5 nonattainment area, and did not
address what might be necessary for purposes of acting upon a
redesignation request.
    However, even if EPA takes the view that the requirements of
subpart 4 were deemed applicable at the time the state submitted the
redesignation request, and disregards the implementation rule's
rebuttable presumptions regarding NH3 and VOC as
PM2.5 precursors, the regulatory consequence would be to
consider the need for regulation of all precursors from any sources in
the area to demonstrate attainment and to apply the section 189(e)
provisions to major stationary sources of precursors. In the case of
Wheeling Area, EPA believes that doing so would not affect the
approvability of the proposed redesignation of the Area for the 1997
PM2.5 standard. The Wheeling Area has attained the standard
without any specific additional controls of NH3 and VOC
emissions from any sources in the area.
    Precursors in subpart 4 are specifically regulated under the
provisions of section 189(e), which requires, with important
exceptions, control requirements for major stationary sources of
PM10 precursors.\7\ Under subpart 1 and EPA's prior
implementation rule, all major stationary sources of PM2.5
precursors were subject to regulation, with the exception of
NH3 and VOC. Thus we must address here whether additional
controls of NH3 and VOC from major stationary sources are
required under section 189(e) of subpart 4 in order to redesignate the
Wheeling Area for the 1997 PM2.5 standard. As explained
below, we do not believe that any additional controls of NH3
and VOC are required in the context of this redesignation.
---------------------------------------------------------------------------

    \7\ Under either subpart 1 or subpart 4, for purposes of
demonstrating attainment as expeditiously as practicable, a state is
required to evaluate all economically and technologically feasible
control measures for direct PM emissions and precursor emissions,
and adopt those measures that are deemed reasonably available.
---------------------------------------------------------------------------

    In the General Preamble, EPA discusses its approach to implementing
section 189(e). See 57 FR 13538-13542. With regard to precursor
regulation under section 189(e), the General Preamble explicitly stated
that control of VOCs under other CAA requirements may suffice to
relieve a state from the need to adopt precursor controls under section
189(e). See 57 FR 13542. EPA in this supplemental proposal proposes to
determine that the West Virginia SIP has met the provisions of section
189(e) with respect to NH3 and VOCs as precursors. This
proposed supplemental determination is based on our findings that (1)
the Wheeling Area contains no major stationary sources of
NH3, and (2) existing major stationary sources of VOC are
adequately controlled under other provisions of the CAA regulating the
ozone NAAQS.\8\ In the alternative, EPA proposes to determine that,
under the express exception provisions of section 189(e), and in the
context of the redesignation of the Wheeling Area, which is attaining
the 1997 annual PM2.5 standard, at present NH3
and VOC precursors from major stationary sources do not contribute
significantly to levels exceeding the 1997 annual PM2.5
standard in the Wheeling Area. See 57 FR 13539-42.
---------------------------------------------------------------------------

    \8\ The Wheeling Area has reduced VOC emissions through the
implementation of various control programs including VOC Reasonably
Available Control Technology regulations (45CSR21) and various on-
road and non-road motor vehicle control programs.
---------------------------------------------------------------------------

    EPA notes that its 1997 PM2.5 implementation rule
provisions in 40 CFR 51.1002 were not directed at evaluation of
PM2.5 precursors in the context of redesignation, but at SIP
plans and control measures required to bring a nonattainment area into
attainment of the 1997 PM2.5 NAAQS. By contrast,
redesignation to attainment primarily requires the area to have already
attained due to permanent and enforceable emission reductions, and to
demonstrate that controls in place can continue to maintain the
standard. Thus, even if we regard the D.C. Circuit Court's January 4,
2013 decision as calling for ``presumptive regulation'' of
NH3 and VOC for PM2.5 under the attainment
planning provisions of subpart 4, those provisions in and of themselves
do not require additional controls of these precursors for an area that
already qualifies for redesignation. Nor does EPA believe that
requiring

West Virginia to address precursors differently than they have already
would result in a substantively different outcome.
    Although, as EPA has emphasized, its consideration here of
precursor requirements under subpart 4 is in the context of a
redesignation to attainment, EPA's existing interpretation of subpart 4
requirements with respect to precursors in attainment plans for
PM10 contemplates that states may develop attainment plans
that regulate only those precursors that are necessary for purposes of
attainment in the area in question, i.e., states may determine that
only certain precursors need be regulated for attainment and control
purposes.\9\ Courts have upheld this approach to the requirements of
subpart 4 for PM10.\10\ EPA believes that application of
this approach to PM2.5 precursors under subpart 4 is
reasonable. Because the Wheeling Area has already attained the 1997
annual PM2.5 NAAQS with its current approach to regulation
of PM2.5 precursors, EPA believes that it is reasonable to
conclude in the context of this redesignation that there is no need to
revisit the attainment control strategy with respect to the treatment
of precursors. Even if the D.C. Circuit Court's decision is construed
to impose an obligation, in evaluating this redesignation request, to
consider additional precursors under subpart 4, it would not affect
EPA's approval here of West Virginia's request for redesignation of the
Wheeling Area. In the context of a redesignation, the Area has shown
that it has attained the standard. Moreover, the State has shown and
EPA has proposed to determine that attainment in this Area is due to
permanent and enforceable emissions reductions on all precursors
necessary to provide for continued attainment. It follows logically
that no further control of additional precursors is necessary.
Accordingly, EPA does not view the January 4, 2013 decision of the D.C.
Circuit Court as precluding redesignation of the Wheeling Area to
attainment for the 1997 PM2.5 NAAQS at this time.
---------------------------------------------------------------------------

    \9\ See, e.g., ``Approval and Promulgation of Implementation
Plans for California--San Joaquin Valley PM10
Nonattainment Area; Serious Area Plan for Nonattainment of the 24-
Hour and Annual PM10 Standards,'' 69 FR 30006 (May 26,
2004) (approving a PM10 attainment plan that imposes
controls on direct PM10 and NOX emissions and
did not impose controls on SO2, VOC, or ammonia
emissions).
    \10\ See, e.g., Assoc. of Irritated Residents v. EPA et al., 423
F.3d 989 (9th Cir. 2005).
---------------------------------------------------------------------------

    In summary, even if West Virginia were required to address
precursors for the Wheeling Area under subpart 4 rather than under
subpart 1, as interpreted in EPA's remanded PM2.5
implementation rule, EPA would still conclude that the area had met all
applicable requirements for purposes of redesignation in accordance
with section 107(d)(3)(E)(ii) and (v) of the CAA.
4. Maintenance Plan and Evaluation of Precursors
    With regard to the redesignation of West Virginia, in evaluating
the effect of the D.C. Circuit Court's remand of EPA's implementation
rule, which included presumptions against consideration of VOC and
ammonia as PM2.5 precursors, EPA in this supplemental
proposal is also considering the impact of the decision on the
maintenance plan required under sections 175A and 107(d)(3)(E)(iv) of
the CAA. To begin with, EPA notes that the Area has attained the 1997
annual PM2.5 standard and that the State has shown that
attainment of that standard is due to permanent and enforceable
emission reductions.
    In the December 11, 2012 NPR, EPA proposed to determine that the
State's maintenance plan shows continued maintenance of the standard by
tracking the levels of the precursors whose control brought about
attainment of the 1997 annual PM2.5 standard in the Wheeling
Area. EPA therefore, believes that the only additional consideration
related to the maintenance plan requirements that results from the D.C.
Circuit Court's January 4, 2013 decision, is that of assessing the
potential role of NH3 and VOC in demonstrating continued
maintenance in this Area. Based upon documentation provided by the
State and supporting information, EPA believes that the maintenance
plan for the Wheeling Area need not include any additional emission
reductions of NH3 or VOC in order to provide for continued
maintenance of the standard.
    First, as noted above in EPA's discussion of section 189(e), VOC
emission levels in this Area have historically been well-controlled
under SIP requirements related to ozone and other pollutants. Second,
total NH3 emissions throughout the Wheeling Area are very
low, estimated to be less than 800 tons per year. See Table 2. This
amount of NH3 emissions appears especially small in
comparison to the total amounts of SO2, NOX, and
even direct PM2.5 emissions from sources in the Area. Third,
as described below, available information shows that no precursor,
including NH3 and VOC, is expected to increase over the
maintenance period so as to interfere with or undermine the State's
maintenance demonstration.
    West Virginia's maintenance plan shows that emissions of direct
PM2.5, SO2, and NOX are projected to
decrease by 2,529 tons per year (tpy), 35,616 tpy, and 20,581 tpy,
respectively, over the maintenance period. See Table 1. In addition,
emissions inventories used in the regulatory impact analysis (RIA) for
the 2012 PM2.5 NAAQS show that VOC and NH3
emissions are projected to decrease by 2,209 tpy between 2007 and 2020.
NH3 emissions are projected to increase by 59 tpy between
2007 and 2020. See Table 2. Given that the Wheeling Area is already
attaining the 1997 PM2.5 NAAQS even with the current level
of emissions from sources in the Area, the downward trend of emissions
inventories would be consistent with continued attainment. Indeed,
projected emissions reductions for the precursors that the State is
addressing for purposes of the 1997 PM2.5 NAAQS indicate
that the Area should continue to attain the NAAQS following the
precursor control strategy that the State has already elected to
pursue.
    Even if VOC and ammonia emissions were to increase unexpectedly
between 2007 and 2020, the overall emissions reductions projected in
direct PM2.5, SO2, and NOX would be
sufficient to offset any increases. For these reasons, EPA believes
that local emissions of all of the potential PM2.5
precursors will not increase to the extent that they will cause
monitored PM2.5 levels to violate the 1997 PM2.5
standard during the maintenance period.

  Table 1--Comparison of 2008, 2015, 2022 SO2, NOX, and Direct PM2.5 Emission Totals in Tons per Year (tpy) for
                                         the Wheeling Nonattainment Area
----------------------------------------------------------------------------------------------------------------
                                                                   SO2               NOX              PM2.5
----------------------------------------------------------------------------------------------------------------
2008......................................................            67,103            35,971             6.001
2015......................................................            36,843            16,204             3,436

2022......................................................            31,487            15,390             3,472
Decrease from 2008 to 2022................................            35,616            20,581             2,529
----------------------------------------------------------------------------------------------------------------

          Table 2--Comparison of 2007 and 2020 VOC and Ammonia Emission Totals by Source Sector (tpy) for the Wheeling Nonattainment Area \11\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                VOC                                             NH3
                                                         -----------------------------------------------------------------------------------------------
                         Sector                                                             Net change                                      Net change
                                                               2007            2020          2007-2020         2007            2020          2007-2020
--------------------------------------------------------------------------------------------------------------------------------------------------------
Point...................................................             396             402               6              89             186              97
Area....................................................           1,686           1,651             -35             532             538               6
Nonroad.................................................             999             514            -485               1               1               0
On-road.................................................           2,469             774          -1,695              86              42             -44
Fires...................................................              70              70               0               5               5               0
                                                         -----------------------------------------------------------------------------------------------
    Total...............................................           5,621           3,412          -2,209             713             772              59
--------------------------------------------------------------------------------------------------------------------------------------------------------

    In addition, available air quality modeling analyses show continued
maintenance of the standard during the maintenance period. The current
air quality design value for the Area is 13.0 micrograms per cubic
meter ([mu]g/m\3\) (based on 2009-2011 air quality data), which is well
below the 1997 annual PM2.5 NAAQS of 15 [mu]g/m\3\.
Moreover, the modeling analysis conducted for the RIA for the 2012
PM2.5 indicates that the design value for this Area is
expected to continue to decline through 2020. In the RIA analysis, the
2020 modeled design value for the Wheeling Area is 8.4 [mu]g/m\3\.
Given that precursor emissions are projected to decrease through 2020,
it is reasonable to conclude that monitored PM2.5 levels in
this Area will also continue to decrease in 2020.
---------------------------------------------------------------------------

    \11\ These emissions estimates were taken from the emissions
inventories developed for the RIA for the 2012 PM2.5
NAAQS. NH3 increases are due to some (~5%) increase in
fertilizer application, but mostly from EGU, and with huge
SO2 (point) reductions (88,229 in 2007 and 14,285 in
2020) would offset any increases.
---------------------------------------------------------------------------

    Thus, EPA believes that there is ample justification to conclude
that the Wheeling Area should be redesignated, even taking into
consideration the emissions of other precursors potentially relevant to
PM2.5. After consideration of the D.C. Circuit Court's
January 4, 2013 decision, and for the reasons set forth in this
supplemental notice, EPA continues to propose approval of West
Virginia's maintenance plan and its request to redesignate the Wheeling
Area to attainment for the 1997 annual PM2.5 standard.

III. Ammonia and Volatile Organic Compound Comprehensive Emissions
Inventory

    EPA in this proposal also addresses the State's submission that
provides additional information concerning NH3 and VOC
emissions in the area in order to meet the emissions inventory
requirement of section 172(c)(3) of the CAA. Section 172(c)(3) of the
CAA requires states to submit a comprehensive, accurate, and current
emissions inventory for the attainment area. For purposes of the
PM2.5 NAAQS, this emissions inventory should address not
only direct emissions of PM2.5, but also emissions of all
precursors with the potential to participate in PM2.5
formation, i.e., SO2, NOX, VOC and
NH3.
    In the December 11, 2012 NPR (77 FR 73575), EPA proposed to approve
the emissions inventory information requirement for the Wheeling Area.
On June 24, 2013, West Virginia supplemented its submittal with the
2008 emission inventories for NH3 and VOC. The additional
emission inventories information provided by the State addresses
emissions of NH3 and VOC from the general source categories
of point sources, area sources, onroad mobile sources, and nonroad
sources. See Table 3. The state-submitted inventories were based on the
data that West Virginia certified and submitted to the 2008 National
Emissions Inventory (NEI) that is available at http://www.epa.gov/ttn/chief/net/2008inventory.html. The NEI is a comprehensive and detailed
estimate of air emissions of both criteria and hazardous air pollutants
from all air emissions sources. The NEI is prepared every three years
by EPA based primarily upon emission estimates and emission model
inputs provided by State, Local and Tribal air agencies.
    The NEI point data category contains emission estimates for sources
that are individually inventory and located at a fixed, stationary
location. Point sources include large industrial facilities and
electric power plants. The NEI nonpoint data category contains
emissions estimates for sources which individually are too small in
magnitude or too numerous to inventory as individual point sources. The
NEI onroad and nonroad data categories contain mobile sources which are
estimated for the 2008 NEI version 3 via the MOVES2010b and NONROAD
models, respectively. NONROAD was run within the National Mobile
Inventory Model (NMIM).

 Table 3--Marshall County, Wheeling Area NH3 and VOC Emissions (tpy) by
                              Source Sector
------------------------------------------------------------------------
                      Sector                           NH3        VOC
------------------------------------------------------------------------
Point.............................................      31.85     320.50
Area..............................................      78.90   2,944.99
Nonroad...........................................       0.12     163.45
Onroad............................................      10.36     269.32
                                                   ---------------------
    Total.........................................     121.23  3, 698.26
------------------------------------------------------------------------

    EPA has concluded that the 2008 NH3 and VOC emissions
inventories provided by the State are complete and as accurate as
possible given the input data available for the relevant categories.
EPA also believes that these inventories provide information about
NH3 and VOC as PM2.5 precursors in the context of
evaluating redesignation of

the Wheeling Area under subpart 4. Therefore, EPA is proposing to
approve the NH3 and VOC emissions inventories submitted by
the State, in conjunction with the NOx, direct PM2.5, and
SO2 emissions inventories that EPA previously proposed to
approve as fully meeting the comprehensive inventory requirement of
section 172(c)(3) of the CAA for the Wheeling Area for the 1997 annual
PM2.5 standard. See (77 FR 7357, December 11, 2012). Since
EPA's prior proposal addressed other precursor emissions inventories,
EPA in this supplemental proposal is seeking comment only with respect
to the additional inventories for NH3 and VOC that West
Virginia has submitted.

IV. Proposed Action

    After fully considering the D.C. Circuit Court's decision in NRDC
v. EPA on EPA's 1997 PM2.5 Implementation rule, EPA in this
supplemental notice is proposing to proceed with approval of the
request to redesignate the Wheeling Area to attainment for the 1997
annual PM2.5 NAAQS and the associated maintenance plan. EPA
in this supplemental notice is also proposing to approve the 2008
NH3 and VOC emissions inventory as meeting, in conjunction
with the direct PM2.5, NOX and SO2
emissions inventory that EPA previously proposed to approve, the
comprehensive emissions inventory requirements of section 172(c)(3) of
the CAA. In addition, EPA in this supplemental action is proposing to
proceed with the approval of the insignificance determination of the
onroad motor vehicle contribution of PM2.5, NOX
and SO2. EPA is seeking comment only on the issues raised in
its supplemental proposal, and is not re-opening comment on other
issues addressed in its prior proposal.

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely proposes to approve state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this proposed action:
     Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive 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 proposed rule pertaining to the redesignation of
the West Virginia portion of the Wheeling WV-OH 1997 annual
PM2.5 nonattainment area, 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.

List of Subjects in 40 CFR Parts 52 and 81

    Environmental protection, Air pollution control, Incorporation by
reference, Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

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

    Dated: July 8, 2013.
W.C. Early,
Acting Regional Administrator, Region III.
[FR Doc. 2013-17704 Filed 7-23-13; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 79, Number 19 (Wednesday, January 29, 2014)]
[Proposed Rules]
[Pages 4638-4641]
[FR Doc No: 2014-01628]

========================================================================
Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.

========================================================================

Federal Register / Vol. 79, No. 19 / Wednesday, January 29, 2014 /
Proposed Rules

SECURITIES AND EXCHANGE COMMISSION

17 CFR Chapter II

[Release Nos. 33-9516, 34-71370, 39-2494, IC-30890; File No. S7-02-14]

List of Rules To Be Reviewed Pursuant to the Regulatory
Flexibility Act

AGENCY: Securities and Exchange Commission.

ACTION: Publication of list of rules scheduled for review.

-----------------------------------------------------------------------

SUMMARY: The Securities and Exchange Commission is today publishing a
list of rules to be reviewed pursuant to Section 610 of the Regulatory
Flexibility Act. The list is published to provide the public with
notice that these rules are scheduled for review by the agency and to
invite public comment on them.

DATES: Comments should be submitted by February 28, 2014.

ADDRESSES: Comments may be submitted by any of the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/other.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File Number S7-02-14 on the subject line; or
     Use the Federal eRulemaking Portal (http://www.regulations.gov). Follow the instructions for submitting comments.

Paper Comments

     Send paper comments to Elizabeth M. Murphy, Secretary,
Securities and Exchange Commission, 100 F Street NE., Washington, DC
20549-1090. All submissions should refer to File No. S7-02-14. This
file number should be included on the subject line if email is used. To
help us process and review your comments more efficiently, please use
only one method. The Commission will post all comments on the
Commission's Internet Web site (http://www.sec.gov/rules/other.shtml).
Comments also are available for Web site viewing and printing in the
Commission's Public Reference Room, 100 F Street NE., Washington, DC
20549 on official business days between the hours of 10:00 a.m. and
3:00 p.m. All comments received will be posted without change; we do
not edit personal identifying information from submissions. You should
submit only information that you wish to make available publicly.

FOR FURTHER INFORMATION CONTACT: Anne Sullivan, Office of the General
Counsel,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: The Regulatory Flexibility Act (``RFA''),
codified at 5 U.S.C. 600-611, requires an agency to review its rules
that have a significant economic impact upon a substantial number of
small entities within ten years of the publication of such rules as
final rules. 5 U.S.C. 610(a). The purpose of the review is ``to
determine whether such rules should be continued without change, or
should be amended or rescinded . . . to minimize any significant
economic impact of the rules upon a substantial number of such small
entities.'' 5 U.S.C. 610(a). The RFA sets forth specific considerations
that must be addressed in the review of each rule:
     The continued need for the rule;
     The nature of complaints or comments received concerning
the rule from the public;
     The complexity of the rule;
     The extent to which the rule overlaps, duplicates or
conflicts with other federal rules, and, to the extent feasible, with
state and local governmental rules; and
     The length of time since the rule has been evaluated or
the degree to which technology, economic conditions, or other factors
have changed in the area affected by the rule. 5 U.S.C. 610(c).
    The Securities and Exchange Commission, as a matter of policy,
reviews all final rules that it published for notice and comment to
assess not only their continued compliance with the RFA, but also to
assess generally their continued utility. The list below is therefore
broader than that required by the RFA, and may include rules that do
not have a significant economic impact on a substantial number of small
entities. Where the Commission has previously made a determination of a
rule's impact on small businesses, the determination is noted on the
list.
    The Commission particularly solicits public comment on whether the
rules listed below affect small businesses in new or different ways
than when they were first adopted.\1\ The rules and forms listed below
are scheduled for review by staff of the Commission during the next 12
months. The list includes rules from 2002. When the Commission
implemented the Act in 1980, it stated that it ``intend[ed] to conduct
a broader review [than that required by the RFA], with a view to
identifying those rules in need of modification or even rescission.''
Securities Act Release No. 6302 (Mar. 20, 1981), 46 FR 19251 (Mar. 30,
1981).
---------------------------------------------------------------------------

    \1\ Several of the rulemakings identified below included non-
substantive rule amendments, such as conforming cross references.
The Commission requests that commenters focus on the substantive
aspects of the rulemakings indicated in the list.
---------------------------------------------------------------------------

List of Rules To Be Reviewed

    Title: Requirements for Arthur Andersen LLP Auditing Clients.
    Citation: 17 CFR 210.2-02, 17 CFR 230.401a, 17 CFR 230.437a, 17 CFR
240.12b-37, and 17 CFR 260.19a-1.
    Authority: 15 U.S.C. 77b, 15 U.S.C. 77d, 15 U.S.C. 77g, 15 U.S.C.
77h, 15 U.S.C. 77j, 15 U.S.C. 77s, 15 U.S.C. 77z-3, 15 U.S.C. 78c, 15
U.S.C. 78d, 15 U.S.C. 78j, 15 U.S.C. 78l, 15 U.S.C. 78m, 15 U.S.C. 78n,
15 U.S.C. 78o, 15 U.S.C. 78w, 15 U.S.C. 78mm, 15 U.S.C. 77ddd, 15
U.S.C. 77eee, 15 U.S.C. 77ggg, 15 U.S.C. 77hhh, 15 U.S.C. 77jjj, 15
U.S.C. 77nnn and 15 U.S.C. 77sss.
    Description: The rules were adopted to minimize any disruptions
that may have occurred as a result of the indictment of Arthur Andersen
LLP by modifying, in a manner appropriate to the protection of
investors, the requirements for including audited financial statements
in registration statements under the Securities Act of 1933
(``Securities Act'') and filings required by the Trust Indenture Act of
1939 by registrants that are unable to or elect not to have Andersen
issue a manually signed audit report, if the audit report was not
issued on or before March 14, 2002.
    Prior Commission Determination Under 5 U.S.C. 610: Pursuant to
Section 553(b) of the Administrative Procedure Determination Under Act
(5 U.S.C. 553(b)(B)) (``APA''), the Commission for

good cause found that prior notice and public comment was unnecessary.
Because the Commission found good cause that notice and comment were
unnecessary, no regulatory flexibility analysis was required. The rules
were adopted in Release No. 33-8070 (March 18, 2002).

    Title: Registration Form for Insurance Company Separate Accounts
Registered as Unit Investment Trusts that Offer Variable Life Insurance
Policies.
    Citation: 17 CFR 239.17c (Securities Act). 17 CFR 274.11d
(Investment Company Act).
    Authority: 15 U.S.C. 77b, 77c, 77d, 77f, 77g, 77h, 77j, 77r, 77sss,
77z-3, 78c, 78d, 78l, 78m, 78n, 78o, 78t, 78w, 78ll(d), 78mm, 79t, 80a-
8, 80a-24, 80a-28, 80a-29, 80a-30, 80a-37.
    Description: Form N-6 is a registration form used by separate
accounts that are unit investment trusts that offer variable life
insurance contracts to register under Investment Company Act of 1940
and to offer their securities under the Securities Act of 1933.
    Prior Commission Determination Under 5 U.S.C. 605: A Regulatory
Flexibility Act Certification was prepared in accordance with 5 U.S.C.
605(b) in conjunction with the adoption of Release No. 33-8088 (IC-
25522), which was approved by the Commission on April 12, 2002. At that
time it was noted that the Commission had requested comments on the
initial certification, which had been attached to the proposing
release, but had received none.

    Title: Amendment to Definition of ``Equity Security.''
    Citation: 17 CFR 230.405 and 17 CFR 240.3a11-1.
    Authority: 15 U.S.C. 77f, 15 U.S.C. 77g, 15 U.S.C. 77j, 15 U.S.C.
77s(a), 15 U.S.C. 78c(b), and 15 U.S.C. 78w(a).
    Description: The rule amendments conform the definition of ``equity
security'' in the rules under the Securities Act and the Securities
Exchange Act of 1934 (``Exchange Act'') to the statutory definitions
with respect to security futures established in the Commodity Futures
Modernization Act of 2000 (``CFMA'').
    Prior Commission Determination Under 5 U.S.C. 610: Pursuant to
Section 553(b) of the APA, the Commission for good cause found that
prior notice and public comment was unnecessary. Because the Commission
found good cause that notice and comment were unnecessary, no RFA
analysis was required. The rules were adopted in Release No. 33-8091
(April 17, 2002).

    Title: Mandated EDGAR Filing for Foreign Issuers.
    Citation: 17 CFR 230.493, 17 CFR 239.800, 17 CFR 249.250, 17 CFR
249.480, and 17 CFR 249.306.
    Authority: 15 U.S.C. 77f, 15 U.S.C. 77g, 15 U.S.C. 77h, 15 U.S.C.
77j, 15 U.S.C. 77s(a), 15 U.S.C. 78c, 15 U.S.C. 78l, 15 U.S.C. 78m, 15
U.S.C. 78n, 15 U.S.C. 78o(d), 15 U.S.C. 78w, 15 U.S.C. 78ll, 15 U.S.C.
77ddd, 15 U.S.C. 77eee, 15 U.S.C. 77ggg, 15 U.S.C. 77jjj, and 15 U.S.C.
77sss.
    Description: The amendments require foreign private issuers and
foreign governments to file electronically through the EDGAR system
most of their securities documents, including registration statements
under the Securities Act and registration statements, reports and other
documents under the Exchange Act. The rule amendments also clarify when
an issuer may submit an English summary instead of an English
translation of a foreign language document; eliminate the requirement
that any first-time EDGAR filer, domestic or foreign, submit a paper
copy of its electronic filing to the Commission; and permit a national
securities exchange to file voluntarily on EDGAR a Form 25, which
reports the delisting of a class of a company's securities.
    Prior Commission Determination Under 5 U.S.C. 610: Pursuant to
Section 605(b) of the RFA, the Chairman of the Commission certified at
the proposal stage on September 25, 2001 in Release No. 33-8016 that
the rule revisions would not have a significant economic impact on a
substantial number of small entities. The SEC solicited comments
concerning the impact on small entities and the RFA certification, but
received no comments. The rules were adopted in Release No. 33-8099
(May 14, 2002).

    Title: Cash Settlement and Regulatory Halt Requirements for
Security Futures Products.
    Citation: 17 CFR 240.6h-1.
    Authority: 15 U.S.C. 78f, 78i, 78o-3, 78s, 78w(a), and 78mm.
    Description: The Commodity Futures Trading Commission (``CFTC'')
and SEC adopted this rule generally to require that the final
settlement price for each cash-settled security futures product fairly
reflect the opening price of the underlying security or securities, and
that trading in any security futures product halt when a regulatory
halt is instituted with respect to a security or securities underlying
the security futures product by the national securities exchange or
national securities association listing the security. The rule sets
forth more specifically how the exchange's or association's rules can
satisfy provisions added to the Commodity Exchange Act (``CEA'') and
the Exchange Act by the CFMA.
    Prior Commission Determination Under 5 U.S.C. 610: Pursuant to
Section 605(b) of the RFA, the Chairman of the Commission certified
that the adopted rule would not have a significant economic impact on a
substantial number of small entities. This certification, including the
reasons therefore, was attached to Proposing Release No. 34-44743
(August 24, 2001) as Appendix A. The SEC solicited comments concerning
the impact on small entities and the RFA certification, but received no
comments. The final rule was adopted in Release No. 34-45956 (May 17,
2002).

    Title: Assessments on Security Futures Transactions and Fees on
Sales of Securities Resulting from Physical Settlement of Security
Futures Pursuant to Section 31 of the Exchange Act.
    Citation: 17 CFR 240.31.
    Authority: 15 U.S.C. 78c(A), 78w(a), and 78ee.
    Description: The amendment clarifies how to calculate assessments
required to be paid by national securities exchanges and national
securities associations pursuant to Section 31(d) of the Exchange Act
for security futures transactions. In addition, the amendment provides
guidance on how to calculate fees required to be paid by national
securities exchanges and national securities associations pursuant to
Sections 31(b) and (c) of the Exchange Act, respectively, for sales of
securities that result from the physical settlement of security
futures.
    Prior Commission Determination Under 5 U.S.C. 610: Pursuant to
Section 605(b) of the RFA, the Chairman of the Commission certified
that the amendment to the rule would not have a significant economic
impact on a substantial number of small entities. This certification
was attached to Proposing Release No. 45854 (May 1, 2002) as Appendix
A. The SEC solicited comments concerning the impact on small entities
and the RFA certification, but received no comments. The final rule was
adopted in Release No. 34-46169. (July 8, 2002).

    Title: Customer Margin Rules Relating to Security Futures.
    Citation: 17 CFR 242.400 through 242.406.
    Authority: 15 U.S.C. 78c(A), 78f, 78g(c), 78o-3, and 78w(a).
    Description: The CFTC and SEC adopted rules to establish margin
requirements for security futures to preserve the financial integrity
of markets trading security futures, prevent

systemic risk, and require that the margin requirements for security
futures be consistent with the margin requirements for comparable
exchange-traded option contracts.
    Prior Commission Determination Under 5 U.S.C. 610: Pursuant to
Section 605(b) of the RFA, the Chairman of the Commission certified
that the adopted rule would not have a significant economic impact on a
substantial number of small entities. This certification was attached
to Proposing Release No. 34-50720 (October 4, 2001) as Appendix A. The
SEC solicited comments concerning the impact on small entities and the
RFA certification, but received no comments. The final rules were
adopted in Release No. 34-46292 (August 1, 2002).

    Title: Certification of Disclosure in Companies' Quarterly and
Annual Reports.
    Citation: 17 CFR 229.307, 17 CFR 240.13a-10, 17 CFR 240.13a-14, 17
CFR 240.13a-15, 17 CFR 240.15d-10, 17 CFR 240.15d-14, 17 CFR 240.15d-
15, 17 CFR 240.12b-15, 17 CFR 249.308a, 17 CFR 249.310, 17 CFR
249.220f, 17 CFR 249.240f, 17 CFR 232.302.
    Authority: 15 U.S.C. 78j(b), 15 U.S.C. 78m, 15 U.S.C. 78o(d), and
15 U.S.C. 78w(a), 15 U.S.C. 7202, 15 U.S.C. 7241.
    Description: The Commission adopted rules and amendments in light
of Congress' directive in Section 302 of the Sarbanes-Oxley Act of
2002. The rules require an issuer's principal executive and financial
officers each to certify the financial and other information contained
in the issuer's quarterly and annual reports. The rules also require
these officers to certify that: they are responsible for establishing,
maintaining and regularly evaluating the effectiveness of the issuer's
internal controls; they have made certain disclosures to the issuer's
auditors and the audit committee of the board of directors about the
issuer's internal controls; and they have included information in the
issuer's quarterly and annual reports about their evaluation and
whether there have been significant changes in the issuer's internal
controls or in other factors that could significantly affect internal
controls subsequent to the evaluation. In addition, the rules require
issuers to maintain, and regularly evaluate the effectiveness of,
disclosure controls and procedures designed to ensure that the
information required in reports filed under the Exchange Act is
recorded, processed, summarized and reported on a timely basis.
    Prior Commission Determination Under 5 U.S.C. 610: A Final
Regulatory Flexibility Analysis was prepared Determination Under in
accordance with 5 U.S.C. 604 in conjunction with Release No. 33-8124,
approved by the Commission on August 28, 2002, which adopted the rules
and amendments. The Commission considered comments received on the
Initial Regulatory Flexibility Analysis in the analysis at that time.

    Title: Rule 30a-2.
    Citation: 17 CFR 270.30a-2
    Authority: 15 U.S.C. 78m, 78o(d), 80a-1 et seq., 80a-8, 80a-29,
80a-37; 7202 and 7241; and 18 U.S.C. 1350.
    Description: Rule 30a-2 under the Investment Company Act of 1940
generally requires that (a) each report filed on Form N-CSR (Sec. Sec.
249.331 and 274.128) and Form N-Q (Sec. Sec.  249.332 and 274.130) by a
registered management investment company (``fund'') must include the
certifications in the form specified in Item 12(a)(2) of Form N-CSR or
Item 3 of Form N-Q, as applicable, and (b) each report on Form N-CSR
filed by a fund under Section 13(a) or 15(d) of the Exchange Act (15
U.S.C. 78m(a) or 78o(d)) and that contains financial statements must be
accompanied by the certifications required by Section 1350 of Chapter
63 of Title 18 of the United States Code (18 U.S.C. 1350).
    Prior Commission Determination Under 5 U.S.C. 601: A Final
Regulatory Flexibility Analysis was prepared in accordance with 5
U.S.C. 604 in conjunction with the adoption of Release No. IC-25722;
the release was approved by the Commission on August 28, 2002. Comments
to the respective proposing release and any comments to the respective
Initial Regulatory Flexibility Analysis were considered in connection
with those rulemakings.

    Title: Confirmation Requirements for Transactions of Security
Futures Products Effected in Futures Accounts.
    Citation: 17 CFR 240.10b-10; 17 CFR 249.11d2-1
    Authority: 15 U.S.C. 77c, 77d, 77g, 77j, 77s, 77z-2, 77z-3, 77eee,
77ggg, 77nnn, 77sss, 77ttt, 78c, 78d, 78e, 78f, 78g, 78i, 78j, 78j-l,
78k, 78k-1, 78l, 78m, 78n, 78o, 78p, 78q, 78s, 78u-5, 78w, 78x, 78ll,
78mm, 79q, 79t, 80a-20, 80a-23, 80a-29, 80a-37, 80b-3, 80b-4 and 80b-11
    Description: The rule amendments and new rule were designed to
clarify the disclosures broker-dealers effecting transactions in
security futures products in futures accounts must make in the
confirmations sent to customers regarding those transactions. The
amendments provide that broker-dealers effecting transactions in
security futures products in futures accounts do not have to disclose
all of the information required by the SEC's confirmation disclosure
rule, but rather require that the transaction confirmations for these
accounts disclose specific information and notify customers that
certain additional information will be available upon written request.
One rule also exempts broker-dealers effecting transactions for
customers in security futures products in a futures account from the
disclosure requirements of Section 11(d)(2) of the Exchange Act.
    Prior Commission Determination Under 5 U.S.C. 610: Pursuant to
Section 605(b) of the RFA, the Chairman of the Commission certified
that the proposed amendments to Rule 10b-10 and new Rule 11d2-1 would
not have a significant economic impact on a substantial number of small
entities. This certification was attached to Proposing Release No. 34-
46014 (May 31, 2001) as Appendix A. The SEC solicited comments
concerning the impact on small entities and the RFA certification, but
received no comments. The rule and rule amendment were adopted in
Release No. 34-46471 (September 6, 2002).

    Title: Applicability of CFTC and SEC Customer Protection,
Recordkeeping, Reporting, and Bankruptcy Rules and the Securities
Investor Protection Act of 1970 to Accounts Holding Security Futures
Products.
    Citation: 17 CFR 240.15c3-3, 17 CFR 240.17a-3, 17 CFR 240.17a-4, 17
CFR 240.17a-5, 17 CFR 240.17a-7, 17 CFR 240.17a-11, 17 CFR 240.17a-13,
and 17 CFR 240.17a-25
    Authority: 15 U.S.C. 77c, 77d, 77g, 77j, 77s, 77z-2, 77z-3, 77eee,
77ggg, 77nnn, 77sss, 77ttt, 78c, 78d, 78e, 78f, 78fff, 78g, 78i, 78j,
78j-1, 78k, 78k-1, 78l, 78m, 78n, 78o, 78p, 78q, 78s, 78u-5, 78w, 78x,
78ll, 78mm, 79q, 79t, 80a-20, 80a-23, 80a-29, 80a-37, 80b-3, 80b-4 and
80b-11
    Description: The CFTC and SEC adopted rules under the CEA and the
Securities Exchange Act as part of the joint regulatory framework under
which futures commission merchants (``FCMs'') and brokers or dealers
(``broker-dealers'' or ``BDs'') may effect transactions in security
futures products for customers. The rules require all firms conducting
business in security futures products to make disclosures to customers
that transact business in security futures products concerning the
protections provided by both the CEA and Exchange Act regulatory
schemes, the regulatory scheme applicable to their accounts, and the
alternative regulatory scheme not applicable to

their accounts. In addition, the rules require that every firm engaged
in this business that is fully-registered both as an FCM and as a
broker-dealer establish written procedures regarding how customer
security futures products are held. The rules also specify how CEA and
Exchange Act recordkeeping, reporting, and certain other rules apply to
security futures product transactions and accounts in which security
futures products are held.
    Prior Commission Determination Under 5 U.S.C. 610: Pursuant to
Section 605(b) of the RFA, the Chairman of the Commission certified
that the rules would not have a significant economic impact on a
substantial number of small entities. This certification was attached
to Proposing Release No. 44854 (Sept. 26, 2001) as Appendix A. The SEC
solicited comments concerning the impact on small entities and the RFA
certification, but received no comments. The rules were adopted in
Release No. 34-46473 (September 9, 2002).

    Title: Exemption for Standardized Options From Provisions of the
Securities Act of 1933 and From the Registration Requirements of the
Securities Exchange Act of 1934.
    Citation: 17 CFR 230.238, 17 CFR 240.9b-1, 17 CFR 240.12a-9, and 17
CFR 240.12h-1.
    Authority: 15 U.S.C. 77s, 15 U.S.C. 77z-3, 15 U.S.C. 78l(h), 15
U.S.C. 78w(a), and 15 U.S.C. 78mm.
    Description: The rules exempt standardized options issued by
registered clearing agencies and traded on a national securities
exchange from all the provisions of the Securities Act (other than the
antifraud provisions) and the Exchange Act registration requirements.
The rules also clarify that a security futures product is similarly
exempted from the Exchange Act Section 12(g) registration requirements.
    Prior Commission Determination Under 5 U.S.C. 610: Pursuant to
Section 605(b) of the RFA, the Chairman of the Commission certified at
the proposal stage on July 25, 2002 in 5 U.S.C. 610: Release No. 33-
8114 that the rule revisions would not have a significant economic
impact on a substantial number of small entities. The SEC solicited
comments concerning the impact on small entities and the RFA
certification, but received no comments. The rules and rule amendments
were adopted in Release No. 33-8171 (December 23, 2002).

    Dated: January 23, 2014.

    By the Commission.
Elizabeth M. Murphy,
Secretary.
[FR Doc. 2014-01628 Filed 1-28-14; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 79, Number 58 (Wednesday, March 26, 2014)]
[Notices]
[Pages 16838-16839]
[FR Doc No: 2014-06601]

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SECURITIES AND EXCHANGE COMMISSION

Submission for OMB Review; Comment Request

Upon Written Request, Copies Available From: Securities and Exchange
Commission, Office of Investor Education and Advocacy, Washington, DC
20549-0213.

Extension:
    Rule 15b6-1 and Form BDW, SEC File No. 270-17, OMB Control No.
3235-0018.

    Notice is hereby given that, pursuant to the Paperwork Reduction
Act of 1995

(``PRA'') (44 U.S.C. 3501 et seq.), the Securities and Exchange
Commission (``Commission'') has submitted to the Office of Management
and Budget (``OMB'') a request for approval of extension of the
previously approved collection of information provided for in Rule
15b6-1 (17 CFR 240.15b6-1), under the Securities Exchange Act of 1934
(15 U.S.C. 78a et seq.).
    Registered broker-dealers use Form BDW (17 CFR 249.501a) to
withdraw from registration with the Commission, the self-regulatory
organizations, and the states. On average, the Commission estimates
that it would take a broker-dealer approximately one hour to complete
and file a Form BDW to withdraw from Commission registration as
required by Rule 15b6-1. The Commission estimates that approximately
488 broker-dealers withdraw from Commission registration annually \1\
and, therefore, file a Form BDW via the Internet with the Central
Registration Depository, a computer system operated by the Financial
Industry Regulatory Authority, Inc. that maintains information
regarding registered broker-dealers and their registered personnel. The
488 broker-dealers that withdraw from registration by filing Form BDW
would incur an aggregate annual reporting burden of approximately 488
hours.\2\
---------------------------------------------------------------------------

    \1\ This estimate is based on Form BDW data collected over the
past three years for fully registered broker-dealers. In fiscal year
(from 10/1 through 9/30) 2011, 524 broker-dealers withdrew from
registration. In fiscal year 2012, 428 broker-dealers withdrew from
registration. In fiscal year 2013, 513 broker-dealers withdrew from
registration. (524 + 428 + 513)/3 = 488.
    \2\ (488 x 1 hour) = 488 hours.
---------------------------------------------------------------------------

    An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information under the PRA unless it
displays a currently valid OMB control number.
    The public may view background documentation for this information
collection at the following Web site: www.reginfo.gov. Comments should
be directed to: (i) Desk Officer for the Securities and Exchange
Commission, Office of Information and Regulatory Affairs, Office of
Management and Budget, Room 10102, New Executive Office Building,
Washington, DC 20503, or by sending an email to<EMAIL_ADDRESS>and (ii) Thomas Bayer, Director/Chief Information
Officer, Securities and Exchange Commission, c/o Remi Pavlik-Simon, 100
F Street NE., Washington, DC 20549, or by sending an email to<EMAIL_ADDRESS>Comments must be submitted to OMB within 30 days of
this notice.

    Dated: March 20, 2014.
Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2014-06601 Filed 3-25-14; 8:45 am]
BILLING CODE 8011-01-P