[Federal Register Volume 77, Number 113 (Tuesday, June 12, 2012)]
[Rules and Regulations]
[Pages 34810-34819]
[FR Doc No: 2012-14141]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52

[EPA-R03-OAR-2011-0680; FRL-9685-5]

Determination of Failure To Attain by 2005 and Determination of
Current Attainment of the 1-Hour Ozone National Ambient Air Quality
Standards in the Baltimore Nonattainment Area in Maryland

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is issuing two separate and independent final
determinations related to the Baltimore 1-hour ozone nonattainment
area. First, EPA is determining that the Baltimore area previously
failed to attain the 1-hour ozone National Ambient Air Quality Standard
(NAAQS) by its applicable attainment deadline of November 15, 2005
(based on complete, quality-assured and certified ozone monitoring data
for 2003-2005). Second, EPA is also determining that the Baltimore area
is currently attaining the now revoked 1-hour ozone NAAQS based on
complete, quality-assured and certified ozone monitoring data for 2008-
2010 and continuing for 2009-2011. Thus, quality-assured ozone
monitoring data in the Air Quality System (AQS) show that the area has
been attaining the revoked 1-hour ozone standard since 2008. EPA's
determination that the area has attained the 1-hour ozone standard
obviates the need for submission of any contingency measures for
failure to attain that revoked standard.

DATES: This final rule is effective on July 12, 2012.

ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2011-0680. All documents in the docket are listed in
the www.regulations.gov Web site. Although listed in the electronic
docket, some information is not publicly available, i.e., confidential
business information (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 through www.regulations.gov or in hard
copy for public inspection during normal business hours at the Air
Protection Division, U.S. Environmental Protection Agency, Region III,
1650 Arch Street, Philadelphia, Pennsylvania 19103.

FOR FURTHER INFORMATION CONTACT: Christopher Cripps,<PHONE_NUMBER>, or
by email at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:
    Throughout this document, whenever ``we,'' ``us,'' or ``our'' is
used, we mean EPA.

Table of Contents

I. What actions EPA is taking?
II. What is the background for these actions?
III. What comments were received on these actions and what are EPA's
responses?
IV. Final Actions
V. Statutory and Executive Order Reviews

I. What actions EPA is taking?

    EPA is issuing two separate and independent determinations for the
Baltimore area related to implementation of anti-backsliding
requirements for the 1-hour ozone NAAQS.\1\
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    \1\ Hereafter the term ``1-hour ozone NAAQS'' may be expressed
either as ``1-hour ozone NAAQS'' or as ``1-hour ozone standard.''
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A. Determination of Failure To Attain the 1-Hour Ozone NAAQS by the
Applicable Attainment Date

    Pursuant to EPA's authority to ensure implementation of 1-hour
ozone anti-backsliding requirements and section 301 of the Clean Air
Act (CAA), EPA is determining that complete, quality-assured and
certified data for 2003-2005 show that the Baltimore area previously
failed to attain the 1-hour ozone standard by its applicable November
15, 2005 attainment deadline.

B. Determination of Current Attainment of the 1-Hour Ozone NAAQS

    EPA is determining that the Baltimore area is currently attaining
the 1-hour ozone standard. EPA's determination is based on the most
recent three-year periods of complete, quality-assured and certified
data, 2008-2010 and continuing in 2009-2011. Moreover, complete,
quality-assured and certified data show that the Baltimore area has
attained the 1-hour ozone standard since the 2006-2008 monitoring
period and for every three-year period since that time. Pursuant to
EPA's interpretation, as set forth in its Clean Data Policy \2\ and the
cases and regulations that embody it, EPA has determined that the
Baltimore area is no longer obliged to submit and implement the 1-hour
ozone contingency measure requirement of CAA section 172(c)(9).
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    \2\ See ``Reasonable Further Progress, Attainment Demonstration,
and Related Requirements for Ozone Nonattainment Areas Meeting the
Ozone National Ambient Air Quality Standard,'' (Clean Data Policy)
dated May 10, 1995.
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    In order to determine the area's air quality status for purposes of
this action, EPA reviewed ozone monitoring

air quality data from the states, in accordance with 40 CFR 50.9, 40
CFR part 50 appendix H, and EPA policy and guidance, as well as data
processing, data rounding and data completeness requirements. EPA's
review of the air quality data and related rationale for these
determinations are explained in the Notice of Proposed Rulemaking (NPR)
published in the Federal Register on February 1, 2012 (77 FR 4940)
(hereafter ``the NPR for this action'' or ``the February 1, 2012 NPR'')
and will not be restated here.

II. What is the background for these actions?

    The Baltimore area is composed of Baltimore, Carroll, Harford and
Howard Counties and the City of Baltimore.\3\ The 1-hour ozone standard
designations were established by EPA following the enactment of the
1990 Amendments to the CAA. See 56 FR 56694, November 6, 1991. Each
area of the country that was designated nonattainment for the 1-hour
ozone NAAQS was classified by operation of law as marginal, moderate,
serious, severe, or extreme depending on the severity of the area's air
quality problem. (See CAA sections 107(d)(1)(C) and 181(a)). The
Baltimore area was designated nonattainment under the 1-hour ozone
NAAQS and classified as severe-15, with an applicable attainment date
of November 15, 2005.
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    \3\ These same counties were designated nonattainment under the
1997 8-hour ozone NAAQS and the 2008 ozone NAAQS. See 40 CFR 81.321
and 77 FR 30088 at 30127, May 21, 2012.
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    On July 18, 1997, (62 FR 38856), EPA promulgated a new, more
protective standard for ozone based on eight-hour average
concentrations (the ``1997 eight-hour ozone NAAQS''). EPA designated
and classified most areas of the country under the eight-hour ozone
NAAQS in an April 30, 2004 final rule (69 FR 23858). In this April 30,
2004 final rule EPA designated the Baltimore area nonattainment under
the 1997 eight-hour ozone NAAQS and classified the area as moderate.\4\
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    \4\ Subsequently, pursuant to section 181(b)(2), EPA
reclassified the Baltimore area as a serious ozone nonattainment
area due to the area's failure to attain 1997 eight-hour ozone NAAQS
on time. See 77 FR 4901, February 1, 2012.
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    On April 30, 2004 (69 FR 23951), EPA also issued a final rule
entitled ``Final Rule To Implement The 8-hour Ozone National Ambient
Air Quality Standard--Phase 1,'' referred to as the Phase 1 Rule. Among
other matters, this rule revoked the 1-hour ozone NAAQS in most areas
of the country, effective June 15, 2005. (See 40 CFR 50.9(b); 69 FR at
23996; and 70 FR 44470 (August 3, 2005)). The Phase 1 Rule also set
forth how anti-backsliding principles will ensure continued progress
toward attainment of the eight-hour ozone NAAQS by identifying which 1-
hour ozone requirements remain applicable in an area after revocation
of the 1-hour ozone NAAQS.
    Although EPA revoked the 1-hour ozone standard (effective June 15,
2005), eight-hour ozone nonattainment areas remain subject to certain
1-hour anti-backsliding requirements based on their 1-hour ozone
classification. Initially, EPA's Phase 1 rule to address the transition
from the 1-hour to the eight-hour ozone standard did not include 1-hour
nonattainment area contingency measures or major source penalty fee
programs among the measures retained as 1-hour ozone anti-backsliding
requirements. However, on December 23, 2006, the United States Court of
Appeals for the District of Columbia Circuit determined that EPA should
not have excluded these requirements (and certain others not relevant
here) from its anti-backsliding requirements. South Coast Air Quality
Management District v. EPA,\5\ 472 F.3d 882 (D.C. Cir. 2006), reh'g
denied 489 F.3d 1245 (clarifying that the vacatur was limited to the
issues on which the court granted the petitions for review). Thus, the
Court vacated the provisions that excluded these requirements. As a
result, states must continue to meet the obligations for 1-hour ozone
NAAQS contingency measures. On May 14, 2012 (77 FR 28424), EPA issued a
final rule that, among other things, removed the vacated provisions of
40 CFR 51.905(e) and addressed the anti-backsliding requirement for
contingency measures for failure to attain or make reasonable further
progress toward attainment of the 1-hour ozone standard. See 74 FR
2936, January 16, 2009 (proposed rule); 74 FR 7027, February 12, 2009
(notice of public hearing and extension of comment period); and 77 FR
28424, May 14, 2012. On February 1, 2012, EPA proposed the
determinations that are the subject of this final rulemaking action.\6\
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    \5\ Hereafter this decision will be called ``South Coast.''
    \6\ EPA's February 1, 2012 Federal Register NPR was captioned as
potentially affecting 40 CFR parts 52 and 81. Because the final
action does not change the classification or other provisions
relating to the Baltimore area codified in 40 CFR part 81, this
action as finalized results only in revision of 40 CFR part 52.
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III. What comments were received on these actions and what are EPA's
responses?

    We received comments from the Sierra Club, which opposed aspects of
both actions and contended that the proposed rule was incomplete.
Below, EPA summarizes those comments and sets forth EPA's responses.

A. Comments on the Determination of Attainment of the 1-Hour Ozone
NAAQS

    Comment 1: The commenter claimed that a finding that Baltimore has
attained since 2008 is premature because monitored data for years since
2008 are for years that are not reflective of the historic trend of
emissions. In support of their position, the commenter cite Draft
Inventory of U.S. Greenhouse Gas Emissions and Sinks, 1990-2010,
(February 2012) to support the proposition that reductions in emissions
of NOX and VOC \7\ in 2008 and 2009 are due in part to
nonpermanent reductions in electricity demand and other emissions
related activities resulting from the economic recession. The commenter
also noted that the same draft inventory stated that CO2
emissions rose by 3.7 percent--the largest increase in a 21 year
period--which should correlate to increasing NOX and VOC
emissions from all sectors as well. The commenter contends that EPA is
required in this rulemaking to further determine that the emissions
decreases were due to pollution controls and not the economic downturn
and cited section 107(d)(3)(E)(iii) of the CAA, which states: ``The
Administrator determines that the improvement in air quality is due to
permanent and enforceable reductions in emissions resulting from
implementation of the applicable implementation plan and applicable
Federal air pollutant control regulations and other permanent and
enforceable reductions.'' The commenter argues that EPA is precluded
here from making a determination of attainment based on monitored air
quality, unless EPA makes an additional analysis and determination that
air quality is due to permanent and enforceable reductions from
enforceable limits and control measures.
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    \7\ NOX is an abbreviation for ``nitrogen oxides;''
VOC is an abbreviation for ``volatile organic compounds.''
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    Response 1: EPA disagrees with the comment. EPA's determination of
attainment in this final rule is properly based on monitored air
quality, and it complies with the statutory and regulatory procedures
that govern the making of a determination of attainment for the
purposes of comparison to the 1-hour NAAQS. See 40 CFR 50.9 and
Appendix H. This determination is by definition solely focused on
monitored air quality concentrations and does not

involve an assessment of causes for those concentrations. Thus it is
separate and independent of the inquiry into the origins of the reduced
monitored ambient concentrations. The commenter conflates EPA's
obligations when making a determination of attainment, which is based
solely on monitored air quality concentrations, with separate and
additional obligations that apply only when EPA is evaluating a request
to redesignate an area from nonattainment to attainment--a process that
is not being undertaken here. The statutory provision cited by
commenter, section 107(d)(3)(E)(iii) of the CAA, applies only in the
context of a redesignation request, and explicitly lists specific
criteria that must be met for redesignation, which are separate from
and in addition to the criteria that must be met when making a
determination of attainment.
    In the quite different context of a redesignation, section
107(d)(3)(E)(iii) of the CAA requires EPA to determine, among other
things, that attainment of a NAAQS resulted from permanent and
enforceable emissions reductions under the applicable SIP and Federal
rules. Section 107(d)(3(E)(i) of the CAA lists a determination of
attainment as an independent factor, separate and apart from the other
criteria for approving a redesignation request. Section
107(d)(3)(E)(iii) of the CAA applies only when EPA proposes to
redesignate an area from nonattainment of a NAAQS to attainment. In our
February 1, 2012 NPR, EPA did not propose to redesignate the Baltimore
area to attainment of the 1-hour ozone NAAQS. Moreover, after
revocation of the 1-hour ozone NAAQS in 2005, EPA no longer
redesignates areas to attainment of the 1-hour ozone NAAQS. Nor as the
commenter claimed, did EPA propose to ``reclassify'' the Baltimore
area.\8\ Instead, the February 1, 2012 NPR proposed only to determine
that the Baltimore area has attained the 1-hour ozone NAAQS based upon
quality-assured and certified data for each consecutive 3-year period
from 2006 to 2008 and through 2008 to 2010. EPA also proposed to
determine that the area continues to attain during the most recent 3-
year period for which data are available, 2009-2011, based upon data
available for 2011. As EPA notes elsewhere in its responses to
comments, these 2011 data have now been certified and quality-assured,
and thus establish that the area continues in attainment for the 1-hour
ozone standard. In accordance with the statute and EPA's regulations,
EPA's determination of attainment is based solely upon monitored air
quality data which establish that the area's air quality has attained
the revoked 1-hour ozone NAAQS. EPA's determination therefore meets
regulatory requirements for the clearly defined purpose for which it is
made. The commenter's concerns and contentions, therefore, are
inaccurate, and do not in any way detract from the sound basis for
EPA's final determination that Baltimore has attained the 1-hour ozone
standard.
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    \8\ After revocation of the 1-hour ozone standard, EPA no longer
reclassifies areas under that standard. Moreover, even prior to
revocation, the statute did not provide for reclassification of
severe areas upon a failure to attain the standard by the applicable
attainment date. See section 181(b)(2).
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    Comment 2: The commenter urges the importance of showing that the
improvement in air quality is not due to the economic downturn is
important because the air quality data indicate that the Baltimore area
is at the upper limit of what can be considered attainment (3.1
expected exceedances over 2009 to 2011) under the 1-hour ozone NAAQS.
The commenter suggests that the air quality improvement and continued
attainment may be due to economic factors and not to pollution controls
and argues that the Baltimore area may quickly slip back into
nonattainment as the economy recovers, and that any ``redesignation of
the area to attainment will not be valid.''
    Response 2: EPA disagrees with the comment. As set forth in EPA's
response to Comment 1, as is appropriate, EPA here is making only a
determination of attainment for the 1-hour ozone standard based on
monitored air quality. EPA is not redesignating the area to attainment
for that standard--nor could the Agency do so, in view of the fact that
the 1-hour ozone standard has been revoked since 2005. EPA's clearly
defined determination of attainment here is consistent with the
regulations that apply, and is based upon three years of complete,
quality-assured monitoring data. For each NAAQS, EPA establishes
through regulation procedures for the requisite level (in this case
0.12 ppm \9\), form (averaging periods, etc.) and, minimum data quality
and handling conventions necessary to distinguish compliance from
noncompliance. Although the 1-hour ozone NAAQS as promulgated in 40 CFR
50.9 includes no discussion of specific rounding conventions regarding
rounding measured ambient air quality data or the expected number of
exceedances for a year or over a consecutive three year period, our
publicly articulated position and the approach long since universally
adopted by the air quality management community is that the
interpretation of the 1-hour ozone standard requires rounding ambient
air quality data consistent with the stated level of the standard.
Section 1.0 of Appendix H to 40 CFR part 50 explains how to determine
when the expected number of days per calendar year with maximum hourly
average concentrations above 0.12 ppm is equal to or less than 1.
Section 1.0 of Appendix H refers to ``Guideline for Interpretation of
Ozone Air Quality Standards'' \10\ for an ``expanded discussion of
these procedures and associated examples.'' In section 2.1--
Interpretation of Expected Number, this ``Guideline for Interpretation
of Ozone Air Quality Standards'' says as long as ``this arithmetic
average remains `less than or equal to 1' the area is in compliance. As
far as rounding conventions are concerned, it suffices to carry one
decimal place when computing the average.'' In the 1990 amendments to
the CAA, Congress expressly recognized the continuing validity of EPA
guidance. See generally, H Comm. Rep. 101-490 pp. 197, 232 (1990)
(House Energy and Commerce Committee Report). Under EPA regulations, a
sum of 3.1 expected exceedances over a consecutive 3-year period
complies with the standard because the average is 3.1 divided by 3 or
1.0333 * * * that when rounded to carry one decimal place is 1.0 which
does not exceed 1. The fractional value of the amount of expected
exceedances arises due to missed monitoring days and derives from
calculations pursuant to Appendix H to 40 CFR part 50. The form of the
standard itself in terms of average number of ``expected exceedances''
is grounded in statistical considerations because the term ``expected
exceedances'' is a statistical term. See section 2.0 of ``Guideline for
Interpretation of Ozone Air Quality Standards.'' This fractional part
of ``expected exceedances'' for a year or for a consecutive 3-year
period arises from the calculation required using the procedures of
Appendix H to 40 CFR part 50 to account for the number of days for
which no valid data difference between the required number of required
monitoring days in the year and the actual number of days with valid
data with an allowance for the number of days a state may assume to

be less than the standard level. These calculations were provided in
Appendix A to ``Technical Support Document--Determination of Failure to
Attain by 2005 and Determination of Attainment by 2008 for the 1-Hour
Ozone National Ambient Air Quality Standards in the Baltimore
Nonattainment Area in Maryland.\11\'' Thus, the form of the 1-hour
ozone NAAQS restricts the level of uncertainty, in the form of missed
monitoring data as expressed, in the case of the 2011 data for one
monitor, as 3.1 expected exceedances over a three-year period.
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    \9\ The abbreviation ``ppm'' stands for parts per million.
    \10\ ``Guideline for the Interpretation of Ozone Air Quality
Standards,'' EPA-450/4-79-003, OAQPS No. 1.2-108, January 1979,
docket item number EPA-R03-OAR-2011-0680-0003 in the docket for this
action.
    \11\ Docket item number EPA-R03-OAR-2011-0680-0008 in the docket
for this action.
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    This fractional number is not an indication that the area is not
attaining the standard, but rather takes into consideration and
accounts for missing data. Moreover, EPA determines whether the area is
in attainment through the procedures and definitions supplied in the
regulations and under long standing interpretations. EPA does not
distinguish degrees of attainment. Once an area's monitored
concentrations show that it is below the level of concentrations
defined as ``attainment'' of the standard, EPA considers the area to be
in attainment of that standard.
    Comment 3: The comments assert that EPA cannot determine that the
Baltimore area is attaining the 1-hour ozone NAAQS for the period 2009
to 2011 unless and until EPA has determined the 2011 data meet the data
quality standards of 40 CFR 50.9 and Appendix H for use in compliance
determinations. The commenter stated that the data for 2011 reflect 209
out of 214 required monitoring days, with ``three days assumed less
than the standard,'' and contends that EPA must show that the missing
days are not contributing to nonattainment for 2009-2011, according to
the applicable calculation methods.
    Response 3: EPA agrees that a determination of attainment of the
revoked 1-hour ozone standard should be consistent with relevant
regulatory requirements. EPA has determined that the 2011 data meet the
quality assurance and certification requirements for use to determine
compliance with the 1-hour ozone NAAQS through 2011. In making a
determination of attainment, EPA relies on the most recent three years
of complete, quality-assured data, and also reviews subsequent data
that become available and that suggest consistency with continued
attainment. On February 1, 2012 (77 FR 4940), EPA proposed a
determination that the Baltimore area has attained the 1-hour ozone
NAAQS, and included data showing that the area had attained the
standard since 2008. Although at that point the 2011 data had not yet
been certified by the State of Maryland, the data for prior years had
been previously certified and showed continuous attainment, and
available data for 2011 were consistent with continued attainment. On
April 12, 2012, the Maryland Department of the Environment certified
the 2011 air quality monitoring data for ozone as complete and quality-
assured. EPA has reviewed the certified 2011 1-hour ozone monitoring
data and determined that the certified 2011 data matches and is the
same as that used to support the February 1, 2012 NPR. Because data for
2011 have now have been certified as complete and quality-assured, this
final rule determining that the Baltimore area is attaining the 1-hour
ozone NAAQS is based upon the most recent three years of complete,
quality-assured, certified air quality monitoring data for 2009 to
2011. As discussed in the previous response, the form of the 1-hour
ozone NAAQS and Appendix H to 40 CFR part 50 (which contains the
interpretation and procedures to calculate the number of expected
exceedances for a year) account for any days for which valid data are
missing. For this reason, EPA can determine the Baltimore area is
attaining the 1-hour ozone NAAQS now that the 2011 data have been
certified.
    Comment 4: The comments asserted that the 2008 1-hour ozone data
for the Edgewood monitor is missing as evinced by an Ozone Monitor
Report 2008 obtained from EPA's Web page http://www.epa.gov/airdata/ad_rep_mon.html. Thus, the comments assert EPA needs to provide these
data and verify that there actually were no values at the Edgewood
monitor in 2008 above the 125 ppb level, and EPA needs to explain why
the 2008 1-hour data for Edgewood, which is the critical monitoring
data for determining attainment, is missing from its Web page. The
comments expressed concern that the 8-hour averages are also very high
which suggests that there may have been 1-hour levels above 125 ppb.
    Response 4: In response to this comment, EPA re-checked the 2008 1-
hour ozone monitoring data for the Edgewood monitor (AQS ID number 24-
025-1001). Although the 2008 data were complete and available through
the portal EPA uses to access AQS, EPA learned that the data for 2008
had not been completely available through the public portal access. The
2008 1-hour ozone air quality data were and are recorded in EPA's Air
Quality Data (AQS) system, which is EPA's official repository for air
quality data to be used for determinations of compliance with a NAAQS.
In preparation for the February 1, 2012 NPR, on March 3, 2011, EPA
viewed and retrieved the data in AQS for the 2008 (as well as the 2004
through 2007, and 2009 through 2010 years) ozone air quality data, and
used this data in the compliance calculations for the proposed
rule.\12\ These calculations were provided in the Technical Support
Document (TSD)--``Determination of Failure to Attain by 2005 and
Determination of Attainment by 2008 for the 1-Hour Ozone National
Ambient Air Quality Standards in the Baltimore Nonattainment Area in
Maryland,'' dated January 26, 2012'' for the proposed rule. See docket
item EPA-R03-OAR-2011-0680-0008.\13\ After receiving the Sierra Club's
comment on this issue, EPA re-checked and downloaded a ``Monitor values
Report'' dated April 16, 2012, for the same 2008 data for the Edgewood
monitoring site via the public access portal of ``Air Data Mart.'' \14\
From an examination of this April 16, 2012 ``Monitor Values Report,''
EPA learned that all the data for the ozone monitors in Harford County
could not be accessed through that portal and that in fact the 2008
data were in AQS. The April 16, 2012 ``Monitor Values Report''
indicated that there were 4850 ``observations'' (data points) in AQS
for the Edgewood monitoring site which equals the same number of
observations as for the 202 valid days of monitoring data for the
Edgewood monitor in 2008 used in the compliance calculations prepared
for the February 1, 2012 NPR.15 16 Upon investigation EPA
determined that there was a minor fault in the Air Data Mart public
access portal system and has corrected the problem. EPA has verified
that the complete 2008 data can now be accessed via the ``Air Data
Mart.'' On May 1, 2012, EPA retrieved a copy from the ``Air Data Mart''
and placed a copy of the output which displays the 2008

data in the docket for this action.\17\ EPA has verified that the 2008
data for the Edgewood monitor now available through the ``Air Data
Mart'' portal do not affect its determination of attainment for the
area during any period that included 2008 data because the data
available on May 1, 2012 via the ``Air Data Mart'' portal is the same
as that EPA obtained on March 3, 2011 for use in the compliance
calculations prepared for the February 1, 2012 NPR. These data values
were thus considered by EPA and do not affect EPA's determinations for
any attainment period that included the 2008 data. Moreover, EPA has
also determined here that the area is attaining the standard for the
most recent three years of complete, quality-assured data, 2009-2011.
EPA's determination for this most recent period does not include or
require reliance upon any data for 2008.
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    \12\ There are several levels of access to AQS such as the
public access portal ``http://www.epa.gov/airdata/ad_rep_mon.html'' and various restricted access portals used by States and
EPA to enter or correct data and to print reports. EPA used a
restricted access portal to obtain the 2008 data presented in the
January 26, 2012, TSD.
    \13\ Refer to the ``Quicklook Criteria Parameters,'' Report
Request ID 843146, Report Code AMP450, dated March 3, 2011, found in
Attachment to Appendix A to the TSD dated January 26, 2011.
    \14\ http://www.epa.gov/airdata/ad_rep_mon.html.
    \15\ The required ozone monitoring season in Maryland is 214
days (from April 1st to October 30th). See Table D-3 to Appendix D
of 40 CFR Part 58.
    \16\ Refer to the ``Monitor Values Report'' from U.S. EPA Air
Data http://www.epa.gov/airdata, generated April 16, 2012. A copy of
this report has been placed in the docket for this action.
    \17\ Refer to the ``Monitor Values Report'' from U.S. EPA Air
Data http://www.epa.gov/airdata, generated May 1, 2012.
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    EPA recognizes that, for the 1997 ozone NAAQS, the 8-hour ozone
values in the Baltimore area exceed that NAAQS, and EPA has taken
action accordingly:
    1. On February 1, 2012, EPA determined that the Baltimore 1997 8-
hour moderate ozone nonattainment area had failed to attain the 1997 8-
hour NAAQS by its applicable attainment date, and the Baltimore area
was reclassified as a serious ozone nonattainment area.\18\ See 77 FR
4901, February 1, 2012.
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    \18\ The boundaries of the ``Baltimore'' nonattainment areas are
the same under both the 1-hour and 1997 8-hour (40 CFF 50.10) NAAQS.
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    2. On April 30, 2012, the EPA Administrator signed a final rule
that designated areas as nonattainment or attainment for 2008 ozone
NAAQS, which is codified at 40 CFR 50.15. The Baltimore, MD area was
included as a nonattainment area. See 77 FR 30088 at 30127, May 21,
2012.

B. Comments Concerning Effect of Determination of Baltimore Area's
Failure to Attain the 1-Hour Ozone NAAQS

    Comment 1: The comments express support for EPA's statement that
the Baltimore area's failure to attain by its statutory 1-hour
attainment date of November 15, 2005 bears on obligations with respect
to two 1-hour ozone anti-backsliding requirements whose implementation
would be triggered by a finding of failure to attain: contingency
measures for failure to attain and section 185 major stationary source
fee programs. However, the commenter disagrees with the proposed rule's
discussion of the effect of the determination on these 1-hour ozone
anti-backsliding requirements. Specifically, the commenter criticizes
EPA's statements below:
    1. ``If this determination [of current 1-hour attainment of ozone
NAAQS] is finalized, then even if EPA finalizes its proposed
determination that the area failed to attain the 1-hour ozone standard
by the 2005 deadline, it will not result in any 1-hour ozone
contingency measure obligations for the area.'' See 77 FR 4940 at 4943.
    2. ``A final determination of failure to attain by the area's 1-
hour attainment date would trigger the 1-hour anti-backsliding
obligation to implement the penalty fee program under section[s]
182(d)(3)[,] 182(f) and 185, unless that obligation is terminated.''
See 77 FR 4940 at 4943.
    The comments assert that under the South Coast decision EPA is
obligated to enforce contingency and fee measures in areas that fail to
attain the 1-hour ozone NAAQS by their attainment dates and is not
authorized to release the area from its contingency obligations or to
terminate the obligation to pay the section 185 and other fees
    With respect to the section 185 fee requirement, the commenter
states that the Baltimore area failed to attain by November 15, 2005,
and that the Baltimore area did not receive an extension of its
attainment date (section 181 (a)(5) of the CAA). The commenter contends
that therefore the area is subject to 185 fees on its major sources of
VOCs and NOx for the time period 2005-2008.
    Response 1: First, we wish to emphasize, as EPA stated in its
proposal, that the purpose of this rulemaking notice is to make
specific air quality determinations regarding whether the Baltimore
area attained the revoked 1-hour ozone standard. While EPA's proposal
stated that these determinations bear on 1-hour anti-backsliding
requirements for contingency measures and CAA section 185 penalty fees,
this notice does not attempt to address or resolve all the
implementation issues regarding those requirements. Thus, Sierra Club's
position that EPA's specific rulemakings on air quality determinations
must also include resolutions of all anti-backsliding implementation
issues that may flow from them is incorrect. While EPA recognizes that
the anti-backsliding requirements for 1-hour ozone contingency measures
and section 185 fees are linked to the determination of failure to meet
the attainment deadline for that standard, EPA's rulemakings here
regarding those determinations do not, and are not required to, dispose
of all implementation issues for those requirements or for others, such
as those raised in Sierra Club's comments regarding milestones and
additional planning.
    Nevertheless, EPA sets forth below its views on points raised by
the commenter. First, with respect to contingency measures, EPA
believes that, as EPA explains in its response below in the context of
the requirement for section 185 penalty fees, it is EPA's final
determination that the area failed to attain by its attainment date
that triggers the requirement to implement these. Since EPA is also
finalizing here its determination that the area is currently attaining
the 1-hour ozone standard, the obligation to submit or implement any
measures is suspended. This would be the case, moreover, even if the
obligation for contingency measures had been triggered at an earlier
date because the purpose of nonattainment contingency measures for
failure to attain is to provide for progress towards attainment. Once
attainment has been reached, this purpose is satisfied. EPA's Clean
Data Policy and the many Courts which have upheld it, including
National Resources Defense Council v. EPA, 571 F.3d 1249 (D.C. Cir.
2009), support this rationale.\19\ Contrary to commenter's complaint,
EPA is not here unlawfully refusing to effectuate the anti-backsliding
requirement for contingency measures. Nor is EPA unlawfully releasing
the area from its anti-backsliding obligation with respect to
contingency measures. To the contrary, EPA is following the long-
established legal path to determining that the contingency measure
requirement has been satisfied by a determination, after notice-and-
comment rulemaking, of attainment of the 1-hour ozone standard. In
making the determination that the area failed to attain the 1-hour
ozone standard by its applicable attainment date, and concurrently
making the determination that the area has been attaining the 1-hour
ozone standard since 2008, and that it continues to attain that
standard, EPA is enforcing the anti-backsliding requirement. The
Baltimore area is not backsliding on the 1-hour ozone standard; as EPA
has determined, the Baltimore area has attained that standard, and
continues to attain it.
---------------------------------------------------------------------------

    \19\ See also Sierra Club v. EPA, 99 F. 3d 1551 (10th Cir.1996);
Sierra Club v. EPA, 375 F.3d 537(7th Cir. 2004); and Our Children's
Earth Foundation v. EPA, No. 04-73032 (9th Cir. June 28, 2005)
(memorandum opinion). See the additional cases listed in footnote 7
of the February 1, 2012 NPR (77 FR 4940 at 4943).

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

    EPA also points out that in these circumstances EPA is not required
to show the causes or amounts of the reductions that have brought the
area into attainment over the last years. EPA's discussion of the
contributions that the 1997 ozone controls have made to 1-hour ozone
attainment was aimed at showing that 1-hour attainment has occurred in
the context of ongoing reductions for a more stringent ozone standard.
This showing is not necessary to and is not relied upon in EPA's
determination that the obligation to submit 1-hour ozone contingency
measures has been satisfied.
    In its comments, Sierra Club argues that EPA's determination that
the Baltimore area failed to attain by its 1-hour ozone attainment
deadline also requires EPA to decide here that it must retroactively
collect penalties under section 185 for the period before EPA made its
determination.\20\ We disagree. Neither EPA's determination, nor the
South Coast case, compels EPA to reach this conclusion or even to
decide that issue here. EPA intends to address issues regarding 1-hour
anti-backsliding requirements in future rulemakings on implementation
of the section 185 requirements for the Baltimore area. Nevertheless,
we wish to express our preliminary views on Sierra Club's comments
below. EPA's preliminary views, as set forth below, are not necessary
to and are independent of its air quality determinations regarding
nonattainment and attainment that are contained in this notice of final
rulemaking.
---------------------------------------------------------------------------

    \20\ As explained above and elsewhere in our response to
comments, EPA disagrees with Sierra Club's contentions regarding
retroactive collection of fees. As a technical point, however, we
note that under section 185, the earliest year for which fees could
ever have been required to be paid is the calendar year following
the attainment date, November 15, 2005. Thus, it is clear that under
no circumstances would fees be due for 2005.
---------------------------------------------------------------------------

    Sierra Club's comments quote at length from South Coast, 472 F.3d
at 902-903. While EPA acknowledges that this decision established that
section 185 fee requirements were to be included as anti-backsliding
measures, the Court in that case did not direct any specific means of
enforcement of these requirements, nor the method for determining
whether an area failed to attain by its attainment date. That decision
established only that the section 185 and contingency measure
requirements were ``applicable.'' It did not establish or even address
how those requirements were to be implemented.\21\
---------------------------------------------------------------------------

    \21\ Moreover, as EPA explained above, those issues are
ancillary to the determination of failure to attain the 1-hour ozone
standard that EPA is finalizing in this rulemaking.
---------------------------------------------------------------------------

    The D.C. Circuit, however, has previously upheld EPA's longstanding
practice of making determinations of an area's failure to meet
attainment deadlines solely through notice and comment rulemaking. See
Sierra Club v. Whitman, 285 F.3d 63 (D.C. Cir. 2002). In that case,
which similarly arose from a determination of failure of a 1-hour ozone
nonattainment area to meet its attainment deadline, the D.C. Circuit
rejected a litigant's \22\ demand to make the consequences of that
determination retroactive to the time period before EPA made the
determination. See Sierra Club v. Whitman, 285 F.3d 63 (D.C. Cir.
2002).\23\ In that case, Sierra Club similarly argued that EPA's
overdue determination that the St. Louis 1-hour ozone nonattainment
area failed to attain by its attainment deadline should apply
retroactively, and that the Court should require retroactive
reclassification of the area. The Court rejected Sierra Club's
contention that an EPA rulemaking was not required to determine a
failure to attain.
---------------------------------------------------------------------------

    \22\ In that case, also Sierra Club.
    \23\ Sierra Club v. Whitman was discussed and distinguished in a
recent D.C. Circuit decision that addressed retroactivity in a quite
different context, where, unlike 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).
---------------------------------------------------------------------------

    ``No matter what the Sierra Club thinks the Clean Air Act or the
APA required of EPA, the fact remains that `EPA's established practice
for making a final decision concerning nonattainment and
reclassification is to conduct a rulemaking under the APA, not to issue
a letter, a list, or some other informal document.' * * * [citations
omitted.]'' The Court concluded: ``In other words, if there has not
been a rulemaking there has not been an attainment determination.'' 285
F.3d at 66.
    The Court also refused to accept Sierra Club's assertion that the
Court should compel EPA to give retroactive effect to its
determination, resulting in reclassification as of the area's
attainment date. The Court stated: ``Although EPA failed to make the
nonattainment determination within the statutory time frame, Sierra
Club's proposed solution only makes the situation worse. Retroactive
relief would likely impose large costs on the states, which would face
fines and suits for not implementing air pollution prevention plans
[earlier], even though they were not on notice at the time.'' 285 F.3d
at 68.
    While it is true that the Clean Air Act provides that both
reclassification and penalty fees are consequences of failure to attain
the ozone standard, the D.C. Circuit in Sierra Club recognized that
these weighty consequences are not triggered until EPA makes a
determination, after notice and comment rulemaking, of failure to
attain. In that case, the Court also rejected the view that adverse
consequences from the determination should be imposed retroactively,
especially if it would, as here, subject the states to additional
burdens caused by retroactive requirements that they were not given
notice of prior to conclusion of the rulemaking process.
    Several features of our rulemaking for Baltimore provide additional
grounds for application of a similar position to that taken by the
court in the St. Louis Sierra Club case. In the case of St. Louis, when
the question of retroactive application arose, the area remained in
nonattainment of the 1-hour ozone standard, which was also still the
only standard in effect at the time of the Court's decision. Here,
unlike St. Louis, EPA has determined that the Baltimore area is
currently attaining the 1-hour ozone standard, and thus there is
significantly less reason to consider imposing retroactive penalties
that are intended to bring about the attainment that has already
occurred.
    Sierra Club here argues, unpersuasively, that the South Coast
opinion supports retroactive imposition of penalties, quoting the
Court's statement that, unless section 185 requirements were
applicable, '' a state could go unpenalized without ever attaining even
the original NAAQS. * * *'' 472 F.3d at 903. Here, however, this
possibility does not exist. EPA's final determination in this
rulemaking establishes that the Baltimore area has in fact attained the
1-hour ozone standard.
    Sierra Club quotes the Court's statement in South Coast that
``Congress set the penalty deadline well into the future, giving states
and industry ample notice and sufficient incentives to avoid the
penalties.'' 372 F.3d at 903. Notice of the existence of penalty
provisions, however, is not the same as notice that these provisions
have been triggered. As the D.C. Circuit recognized in Sierra Club v.
Whitman, only when EPA issues a final notice determining that an area
has failed to attain by the attainment date can that failure be
definitively established. The case of Baltimore presents a particularly
compelling context in which to apply this principle. The Baltimore area
has been attaining the 1-hour ozone standard since 2008. No
incentives--and certainly no penalties--are required for the area to

reach attainment,\24\ a goal that the area has met and preserved. Under
these circumstances, and based on the D.C. Circuit's and EPA's long
held position on the issue of retroactive consequences of
determinations of failure to attain, EPA cannot see a reason to impose
penalties on sources in Baltimore. As explained above, EPA is
determining that the area is currently, and has for some time been,
attaining the 1-hour ozone standard. Thus no anti-backsliding purpose
is served by retroactive imposition of fees for a failure to meet a
deadline for a revoked standard, under circumstances that existed years
ago, which have since been eclipsed by continuous attainment. EPA
believes that forcing the states and sources to address old penalties
now would also divert attention and resources from efforts to achieve
current, forward-looking environmental goals, including the stricter
2008 ozone standard. In these circumstances, giving retroactive effect
to EPA's determination of failure to attain the standard here would be
unreasonable, and it would, as the Court held in Sierra Club v.
Whitman, ``only mak[e] the situation worse.''
---------------------------------------------------------------------------

    \24\ Sierra Club appears to recognize this, since it does not
request EPA to impose penalties for the time period after the area
attained the standard (2010 to the present).
---------------------------------------------------------------------------

    Comment 2: The commenter asserts under South Coast (at 903-904)
that, ``anti-backsliding'' considerations require that 1-hour
contingency measures must remain in place even after transitioning away
from the 1-hour ozone standard. The commenter asserts that because EPA
has not yet approved contingency measures for failure to attain for the
Baltimore area, EPA must take remedial action either under 42 U.S.C.
7410(k)(5) to issue a call for a plan revision for the required
contingency measures or under 42 U.S.C. 7410(k)(6) to correct its final
action on the SIP for the Baltimore area by disapproving the submission
\25\ for lack of the contingency measures. The comments assert that EPA
must issue a Federal Implementation Plan (FIP) that includes the
required contingency measures.
---------------------------------------------------------------------------

    \25\ The comments used the phrase ``disapprove the submit.''
---------------------------------------------------------------------------

    Response 2: Even if there existed any outstanding SIP submission
requirement for contingency measures for failing to meet the deadline
to attain the revoked 1-hour ozone standard, EPA's final determination
here that the area has attained the 1-hour ozone standard suspends that
requirement. Pursuant to EPA's Clean Data Policy, EPA's determination
that the area has attained the 1-hour ozone standard means that
attainment has been reached, and thus the purpose of the contingency
measures is fulfilled.
    Comment 3: The commenters claim that any contingency measures now
needed must be from ``current emissions'' and that crediting reductions
from measures in the reasonable further progress (RFP) for 2008 under
the 1997 ozone NAAQS is not supported by any statutory authority. In
addition, the commenters claim that use of the RFP reductions in the
RFP plan for 2008 is arbitrary for two reasons:
    The commenters claim that the 2008 RFP plan does not provide enough
reductions of VOC emissions and that EPA cannot rely on substituting
NOx reductions because there is no direct NOx to VOC trade-off. The
comments assert that the 1-hour contingency requirement is 13.77 tons
per day (tpd) of VOC reductions whereas the RFP plan required 2.05 tpd
of VOC reductions to leave a shortfall of 11.72 tpd of VOC reductions.
The comments claim the contingency plan cannot rely on the ``1997''
ozone NAAQS \26\ requiring more NOX reductions than the 1-
hour contingency requirement ``because there is no such thing as a
direct NOx to VOCs trade off'' and that ozone formation is more
complicated than that. The comments further contend because EPA has not
demonstrated that the RFP reductions have been achieved EPA cannot
credit them towards the contingency requirement.
---------------------------------------------------------------------------

    \26\ See 40 CFR 50.10.
---------------------------------------------------------------------------

    Response 3: EPA disagrees with this comment. EPA believes that
EPA's determination that the Baltimore area attained the 1-hour ozone
NAAQS in 2008 and has continued to attain this NAAQS suspends the
requirement for submission of 1-hour ozone contingency measures. EPA's
final determination of attainment for the 1-hour ozone standard removes
the need at this time to further address any comments or objections
related to the contingency measure requirement. EPA's determination
that the area has been attaining the 1-hour ozone standard since 2008,
and continues to attain the standard, provides independent and
sufficient grounds for concluding that the 1-hour contingency measure
anti-backsliding requirement is satisfied. No additional reductions
from contingency measures--or any other measures--are needed to bring
about attainment of the 1-hour ozone standard or reasonable progress
toward that attainment, which has already been achieved.
    Thus it is not necessary for the purpose of finalizing this notice
to address the commenter's critique of EPA's discussion, in its
proposed rulemaking, of emissions reductions that may have contributed
to attainment. In the February 1, 2012 NPR, EPA included a discussion
of emissions reductions that had occurred in Baltimore in the period
after the area's 1-hour ozone attainment deadline. EPA's discussion
described certain emissions reductions that served the same function as
contingency measures would have done, whether or not the measures that
brought about those reductions had formally been approved as
contingency measures. The commenter addresses EPA's discussion and
criticizes its analysis of post-2005 reductions. While EPA disagrees
with the commenter's views of these reductions, and believes that they
reflect a misunderstanding of the CAA requirements, EPA finds it
unnecessary to respond specifically to them in this rulemaking. The
purpose of contingency measures is to bring about attainment, and EPA's
determination that the area has attained the 1-hour ozone standard
shows that this purpose has been achieved. In these circumstances, it
is not necessary to reach agreement on calculations regarding the
emissions reductions that brought the area into attainment. Attainment
of the 1-hour ozone standard has been reached, and thus no contingency
measures are required to reach attainment. This is all the more true
for an area subject to ongoing implementation of additional control
measures for the 1997 8-hour ozone standard. The decision of the DC
Circuit in South Coast did not address or invalidate the Clean Data
Policy, which was upheld by that Circuit in Natural Resources Defense
Council v. EPA.
    Comment 4: The commenter claims that the contingency measures
should have come into place in 2005 when the area was violating, and,
therefore, EPA cannot use the Clean Data Policy to suspend the
requirement because, the commenter argues: (1) The FIP clock should
have long since passed and a clean data determination cannot excuse EPA
from its FIP obligation; (2) to use the Clean Data Policy would
effectively remove the contingency measure requirement and create a
backslide by removing a requirement that should have been in place
before the clean data determination. The commenter claims that the
Court in South Coast precludes EPA from removing requirements that

were required before this clean data determination.\27\
---------------------------------------------------------------------------

    \27\ The comments contend that the Baltimore area is still
experiencing ``exceedances'' of the 1-hour ozone NAAQS. An
exceedance of the standard does not constitute a violation of that
standard. EPA responses elsewhere in this document show that the 1-
hour ozone NAAQS defines an area as attaining the standard if it has
fewer than or equal to 3.1 expected exceedances over any consecutive
3-year period. As EPA has shown, for the past four years, since
2008, the Baltimore area has not monitored a violation of the 1-hour
ozone NAAQS.
---------------------------------------------------------------------------

    Response 4: As set forth in EPA's response to comments above, prior
to this final rulemaking EPA had not determined that the area failed to
attain by its attainment deadline, and thus, contrary to the
commenter's contention, no contingency measures for failure to attain
had been triggered. See Sierra Club v. Whitman, cited above in EPA's
Response to Comment. Moreover, as explained elsewhere in this notice
and in EPA's proposed rulemaking, EPA is also making here a final
determination that the area has attained the 1-hour ozone standard.
This determination establishes that the purpose of the contingency
measures has been fulfilled. This is the case even if it is determined
that the area previously failed to attain by the applicable deadline. A
determination that the area has attained and continues to attain the
standard, whenever it is issued, logically means that no contingency
measures need be adopted to reach attainment. Thus there is no legal or
common sense justification for a retroactive imposition of ozone
contingency measures intended to achieve attainment of the revoked 1-
hour ozone standard, a goal that has already been reached.
    EPA's prior rulemakings demonstrate that its interpretation under
the Clean Data Policy applies after revocation of the 1-hour ozone
standard, and after the South Coast decision (See 74 FR 13166 (March
26, 2009) and 75 FR 6570 (February 10, 2010). Moreover, since there was
and is no state obligation to adopt one- hour contingency measures,
there is no FIP obligation. Because no SIP deficiency exists with
respect to 1-hour ozone contingency measures, no FIP requirement based
upon it exists either. Contrary to commenter's claim, EPA's
interpretation under the Clean Data Policy does not act to remove an
anti-backsliding requirement; rather, as the Courts have held, even
when the 1-hour ozone standard was in effect, it is an interpretation
that the requirement is satisfied by attainment. Sierra Club v. EPA
(10th Cir. 1996). Contingency measures have no meaning while an area is
attainment.

C. Comments Concerning Revised State Implementation Plan for 1-Hour
Ozone

    Comment 1: The commenter asserts that section 182 of the CAA
requires EPA to require Maryland to submit a ``revised SIP'' for ozone
for the Baltimore area. To support this proposition, the commenter
cites the opening paragraph of section 182(d).\28\ The commenter states
that the plans required by sections 182(c) and (d) of the CAA include
but are not limited to ``enhanced monitoring, attainment and reasonable
further progress \29\ demonstrations, NOx control, and contingency
provisions, as well as the enforcement of fees under ``section
182(d)(3)'' (that is the section 185 fees).
---------------------------------------------------------------------------

    \28\ This paragraph states: ``Each State in which all or part of
a Severe Area is located shall, with respect to the Severe Area,
make the submissions described under subsection (c) [i.e., section
182(c)] of this section (relating to Serious Areas), and shall also
submit the revisions to the applicable implementation plan
(including the plan items) described under this subsection [section
182(d)].'' (with clarifying citations added)
    \29\ ``RFP'' hereafter.
---------------------------------------------------------------------------

    Response 1: EPA disagrees that Maryland must submit additional SIP
revisions for attainment and reasonable further progress
demonstrations, NOx control, and contingency provisions as a
consequence of EPA's determination that the Baltimore area failed to
attain the revoked 1-hour ozone standard by November 15, 2005. EPA does
not agree with commenter's view regarding requirements for a severe
nonattainment area that fails to meet its attainment deadline to revise
its SIP to provide for additional RFP demonstrations and contingency
measures under CAA section 182. Nor does EPA believe that section
181(b)(4) of the CAA imposes any requirements for the revoked 1-hour
ozone standard, because no further 1-hour ozone planning requirements
under that provision or any other, applicable to an area such as
Baltimore, were preserved in anti-backsliding.
    After a standard has been revoked, there is no requirement to
revise an initial attainment demonstration for a severe area after the
area fails to attain by the statutorily applicable attainment date.\30\
We disagree with the commenter's claim that EPA's determination here
triggers the Baltimore area's obligations to adopt and submit a broad
variety of additional SIP revisions for the revoked 1-hour ozone
standard. A plan revision under section 181(b)(4) of the CAA is not an
applicable anti-backsliding requirement under EPA's anti-backsliding
regulations. As EPA has explained in other rulemakings, only those
anti-backsliding requirements that were specifically retained by the
anti-backsliding rule, 40 CFR 51.905, and by the decision in South
Coast are applicable, and others cited by the commenter are not
included. See 76 FR 82133 at 82139-140 (December 30, 2011). As EPA
stated in its proposal, the only anti-backsliding measures that pertain
to this determination of failure to meet the 1-hour deadline are 1-hour
contingency measures for failure to attain and section 185 penalty
fees.
---------------------------------------------------------------------------

    \30\ As noted in the February 1, 2012 NPR, EPA has fully
approved into the Maryland SIP a 1-hour ozone attainment
demonstration, reasonably available control measures and reasonable
further progress (RFP) plans, and RFP contingency measures for the
Baltimore area. See 77 FR 4940 at 4942-4943, February 1, 2012.
---------------------------------------------------------------------------

    Moreover, as set forth above, under EPA's Clean Data Policy, EPA's
determination that the area is currently attaining the 1-hour ozone
standard obviates the need for submission of any planning requirements
related to attainment of the standard. Section 181(b)(4) of the CAA,
cited by the commenter, was not preserved as an anti-backsliding
requirement for the 1-hour ozone standard. In the February 1, 2012 NPR,
EPA stated that its determination ``relates [solely] to effectuating
the anti-backsliding requirements that are specifically retained.'' See
77 FR 4940 at 4942, February 1, 2012.
    Comment 2: The comments state that if EPA maintains that the
Baltimore area has attained the 1-hour ozone standard, EPA must require
a new SIP under ``42 U.S.C. Sec.  7505s(a)'' \31\ which would provide
for ``the maintenance of the national primary ambient air quality
standard for such area in the area concerned for at least 10 years
after the redesignation.''
---------------------------------------------------------------------------

    \31\ Based upon context, EPA concludes the citation to Sec.
7505s(a) in the comment letter is a scrivener's error and should be
to 42 U.S.C. section 7505a(a) (section 175A(a)).
---------------------------------------------------------------------------

    Response 2: EPA disagrees with the comment for several reasons.
Section 175A of the CAA requires that a state submit a ``maintenance
plan \32\'' for the area for which redesignation to attainment is
sought.
---------------------------------------------------------------------------

    \32\ A maintenance plan is a SIP revision to provide for
maintenance of the NAAQS in question for a period of ten years after
the area is redesignated to attainment. See, 42 U.S.C. 7505a(a).
---------------------------------------------------------------------------

    Section 175A of the CAA applies in conjunction with a state's
request to redesignate an area from nonattainment to attainment
pursuant to section 107(d)(3) of the CAA. The maintenance plan referred
to takes effect after EPA approves the area's redesignation to
attainment. Until a state submits such a request for redesignation of a
nonattainment area, section 175A by its

own terms does not require submission of any SIP revision.
    Section 175A(a) of the CAA provides that each state which submits a
request for redesignation of an area to attainment ``shall also
submit'' a maintenance plan under section 175A of the CAA. In context
``shall also submit'' means that the state must submit a maintenance
plan under section 175A only when it requests redesignation under
section 107(d)(3)(E) of the CAA. Thus section 175A compels submission
of a maintenance plan if and only if the state submits a request for
redesignation of a nonattainment area to attainment. Sections
107(d)(3)(E) and 175A of the CAA do not require submission of a request
to redesignate an area to attainment, nor do they require submission of
a maintenance plan in the absence of a redesignation request. As set
forth in EPA's responses above, EPA no longer redesignates areas for
the revoked 1-hour ozone standard.
    EPA no longer redesignates areas to attainment of the 1-hour ozone
NAAQS because EPA revoked that NAAQS on June 15, 2005, as a result of
implementation of the more protective 1997 ozone NAAQS. EPA notes that
the Baltimore area is designated as serious nonattainment for the 1997
ozone NAAQS and has been designated classified as moderate
nonattainment for the 2008 ozone NAAQS.\33\ For all the reasons set
forth above, no requirement for a 1-hour ozone maintenance plan under
section 175A of the CAA is applicable to the Baltimore area.
---------------------------------------------------------------------------

    \33\ Subsequent to June 15, 2005, EPA has issued a revised ozone
NAAQS (the 2008 ozone NAAQS codified at 40 CFR 50.15) for which the
level of the standard, 0.075 ppm--lower than the 0.08 ppm of the
1997 ozone NAAQS. A May 21, 2012 (77 FR 30088 at 30127) final rule
designated and classified the Baltimore area as moderate
nonattainment under the 2008 ozone NAAQS.
---------------------------------------------------------------------------

IV. Final Actions

    EPA is making two separate and independent determinations related
to the Baltimore 1-hour ozone nonattainment area. These determinations
are based upon complete, quality-assured and certified ozone monitoring
data.

A. Determination of Failure To Attain the 1-Hour Ozone NAAQS by the
Applicable Attainment Date

    With respect to the 1-hour ozone standard, and pursuant to EPA's
authority to ensure implementation of 1-hour ozone anti-backsliding
requirements and under CAA section 301, EPA is determining that data
for 2003-2005 show that the Baltimore area previously failed to attain
the 1-hour ozone standard by its applicable November 15, 2005
attainment deadline.

B. Determination of Current Attainment of the 1-Hour Ozone NAAQS

    EPA is determining that the Baltimore area is currently attaining
the 1-hour ozone standard. EPA's determination is based on the most
recent three years of complete, quality-assured and certified data for
2009-2011. In addition complete, quality assured and certified data
show that the Baltimore area has attained since the 2006-2008
monitoring period and for every three-year period since that time.
Pursuant to EPA's interpretation, as set forth in its Clean Data Policy
and the cases and regulations that embody it, EPA has determined that
the Baltimore area is no longer obligated to submit and implement the
1-hour ozone contingency measure requirement of CAA section 172(c)(9).

V. Statutory and Executive Order Reviews

A. General Requirements

    This action makes determinations of attainment and nonattainment
based on monitored air quality data and does not impose additional
requirements beyond those imposed by statute or regulation. For that
reason, this action:
     Is not ``significant regulatory actions'' 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 economically significant regulatory actions based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not significant regulatory actions subject to Executive
Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
     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, these final actions regarding attainment of
the 1-hour ozone NAAQS in the Baltimore area do 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.

B. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).

C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by August 13, 2012. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. This action regarding determinations concerning attainment of
the 1-hour ozone NAAQS in the Baltimore area may not be challenged
later in proceedings to enforce its requirements. (See section
307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by

reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Volatile organic compounds.

    Dated: May 30, 2012.
W.C. Early,
Acting Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart V--Maryland

0
2. Section 52.1076 is amended by adding paragraph (y) to read as
follows.

Sec.  52.1076  Control strategy plans for attainment and rate-of-
progress: Ozone.

* * * * *
    (y) Determination--EPA has determined that, as of July 12, 2012,
the Baltimore 1-hour ozone nonattainment area has attained the 1-hour
ozone standard and that this determination obviates the requirement for
Maryland to submit for the Baltimore area the 1-hour ozone contingency
measure requirements of section 172(c)(9) of the Clean Air Act.

0
3. Section 52.1082 is amended by adding paragraphs (f) and (g) to read
as follows.

Sec.  52.1082  Determinations of attainment.

* * * * *
    (f) Based upon EPA's review of the air quality data for the 3-year
period 2003 to 2005, EPA determined, as of July 12, 2012, that the
Baltimore 1-hour ozone nonattainment area did not attain the 1-hour
ozone standard as of its applicable 1-hour ozone attainment date of
November 15, 2005.
    (g) Based on 2009-2011 complete, quality-assured ozone monitoring
data at all monitoring sites in the Baltimore 1-hour ozone
nonattainment area, EPA determined, as of July 12, 2012, that the
Baltimore 1-hour ozone nonattainment area has attained the 1-hour ozone
standard.

[FR Doc. 2012-14141 Filed 6-11-12; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 86, Number 1 (Monday, January 4, 2021)]
[Notices]
[Page 157]
[FR Doc No: 2020-29013]

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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 34159]

Notice of Applications for Deregistration Under Section 8(f) of
the Investment Company Act of 1940

December 28, 2020.
    The following is a notice of applications for deregistration under
section 8(f) of the Investment Company Act of 1940 for the month of
December 2020. A copy of each application may be obtained via the
Commission's website by searching for the file number, or for an
applicant using the Company name box, at http://www.sec.gov/search/search.htm or by calling<PHONE_NUMBER>. An order granting each
application will be issued unless the SEC orders a hearing. Interested
persons may request a hearing on any application by emailing the SEC's
Secretary at<EMAIL_ADDRESS>and serving the relevant
applicant with a copy of the request by email, if an email address is
listed for the relevant applicant below, or personally or by mail, if a
physical address is listed for the relevant applicant below. Hearing
requests should be received by the SEC by 5:30 p.m. on January 26,
2021, and should be accompanied by proof of service on applicants, in
the form of an affidavit or, for lawyers, a certificate of service.
Pursuant to Rule 0-5 under the Act, hearing requests should state the
nature of the writer's interest, any facts bearing upon the
desirability of a hearing on the matter, the reason for the request,
and the issues contested. Persons who wish to be notified of a hearing
may request notification by writing to the Commission's Secretary at
<EMAIL_ADDRESS>
ADDRESSES: The Commission<EMAIL_ADDRESS>
FOR FURTHER INFORMATION CONTACT: Shawn Davis, Assistant Director, at
(202) 551-6413 or Chief Counsel's Office at<PHONE_NUMBER>; SEC,
Division of Investment Management, Chief Counsel's Office, 100 F Street
NE, Washington, DC 20549-8010.

Premier Multi-Series VIT [File No. 811-22712]

    Summary: Applicant seeks an order declaring that it has ceased to
be an investment company. On April 22, 2020, applicant made a
liquidating distribution to its shareholders based on net asset value.
Expenses of approximately $97,923 incurred in connection with the
reorganization were paid by the applicant and the applicant's
investment adviser.
    Filing Dates: The application was filed on July 29, 2020, and
amended on December 3, 2020.
    Applicant's Address<EMAIL_ADDRESS>
SEI Insurance Products Trust [File No. 811-22862]

    Summary: Applicant seeks an order declaring that it has ceased to
be an investment company. On September 28, 2020, applicant made a
liquidating distribution to its shareholders based on net asset value.
Expenses of approximately $21,512 incurred in connection with the
liquidation were paid by the applicant.
    Filing Date: The application was filed on October 1, 2020.
    Applicant's Address<EMAIL_ADDRESS>
    For the Commission, by the Division of Investment Management,
pursuant to delegated authority.
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020-29013 Filed 12-31-20; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 81, Number 151 (Friday, August 5, 2016)]
[Notices]
[Pages 51874-51876]
[FR Doc No: 2016-18580]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. PF14-21-000]

Alaska Gasline Development Corporation, BP Alaska LNG LLC, Conoco
Phillips Alaska LNG Company, ExxonMobil Alaska LNG LLC; Supplemental
Notice Requesting Comments on the Denali National Park and Preserve
Alterative for the Planned Alaska LNG Project

    As previously noticed on March 4, 2015, the staff of the Federal
Energy Regulatory Commission (FERC or Commission) is preparing an
environmental impact statement (EIS) that will discuss the
environmental impacts of the Alaska LNG Project that could result from
construction and operation of facilities by Alaska Gasline Development
Corporation; BP Alaska LNG LLC; Conoco Phillips Alaska LNG Company; and
ExxonMobil Alaska LNG LLC (Applicants) in Alaska. This notice explains
the additional scoping process that will be used to gather input from
the public and interested agencies on a route alternative to be
evaluated for crossing the Denali National Park and Preserve (DNPP).
    The route currently planned by Alaska LNG is closely aligned with
the Parks Highway, but deviates from the highway where the Parks
Highway passes through the DNPP entrance area (see figure in appendix
1.\1\) In response to scoping comments, and in working with federal and
state regulating agencies, as well as the local communities, Alaska LNG
has identified an alternative route (the DNPP Alternative) that passes
directly through the DNPP entrance area and is closely aligned with the
Parks Highway (see figure in appendix 1). In this general area, the
planned route would be 8.05 miles long and not enter the DNPP, while
the corresponding segment of the DNPP Alternative would be 8.50 miles
long (6.16 miles of which would pass through the DNPP).
---------------------------------------------------------------------------

    \1\ The appendices referenced in this notice will not appear in
the Federal Register. Copies of the appendices were sent to all
those receiving this notice in the mail and are available at
www.ferc.gov using the link called ``eLibrary'' or from the
Commission's Public Reference Room, 888 First Street NE.,
Washington, DC 20426, or call<PHONE_NUMBER>. For instructions on
connecting to eLibrary, refer to the last page of this notice.
---------------------------------------------------------------------------

    This Supplemental Notice announces the opening of a limited scoping
period to gather input from the public and interested agencies on the
DNPP Alternative route. You can make a difference by providing us with
your specific comments or concerns about the DNPP Alternative route.
Your comments should focus on the potential environmental effects,
reasonable alternatives, and measures to avoid or lessen environmental
impacts. Your input will help the Commission staff determine what
issues they need to evaluate in the EIS. To ensure that your comments
are timely and properly recorded, please send your comments so that the
Commission receives them in Washington, DC on or before September 25,
2016.
    This notice is being sent to the Commission's current environmental
mailing list for this project. State and local government
representatives should

notify their constituents of this planned project and encourage them to
comment on their areas of concern.
    If you are a landowner receiving this notice, a pipeline company
representative may contact you about the acquisition of an easement to
construct, operate, and maintain the planned facilities. The company
would seek to negotiate a mutually acceptable agreement. However, if
the Commission approves the project, that approval conveys with it the
right of eminent domain. Therefore, if easement negotiations fail to
produce an agreement, the pipeline company could initiate condemnation
proceedings where compensation would be determined in accordance with
state law.
    A fact sheet prepared by the FERC entitled ``An Interstate Natural
Gas Facility On My Land? What Do I Need To Know?'' is available for
viewing on the FERC Web site (www.ferc.gov). This fact sheet addresses
a number of typically asked questions, including the use of eminent
domain and how to participate in the Commission's proceedings.

Public Participation

    For your convenience, there are three methods you can use to submit
your comments to the Commission. In all instances, please reference the
project docket number (PF14-21-000) with your submission. The
Commission encourages electronic filing of comments and has expert
staff available to assist you at<PHONE_NUMBER> or<EMAIL_ADDRESS>
Please carefully follow these instructions so that your comments are
properly recorded.
    (1) You can file your comments electronically using the eComment
feature on the Commission's Web site (www.ferc.gov) under the link to
Documents and Filings. This is an easy method for submitting brief,
text-only comments on a project;
    (2) You can file your comments electronically by using the eFiling
feature on the Commission's Web site (www.ferc.gov) under the link to
Documents and Filings. With eFiling, you can provide comments in a
variety of formats by attaching them as a file with your submission.
New eFiling users must first create an account by clicking on
``eRegister.'' If you are filing a comment on a particular project,
please select ``Comment on a Filing'' as the filing type; or
    (3) You can file a paper copy of your comments by mailing them to
the following address. Be sure to reference the project docket number
(PF14-21-000) with your submission: Kimberly D. Bose, Secretary,
Federal Energy Regulatory Commission, 888 First Street NE., Room 1A,
Washington, DC 20426.
    In addition, if you have questions regarding the FERC process and
our review of the alternative, FERC staff will be available to answer
questions on Tuesday, August 23, 2016, between 4:00 and 6:00 p.m. at
the Murie Dining Hall within Denali National Park (next to the Murie
Science and Learning Center),
    Please note this is not your only public input opportunity; please
refer to the review process flow chart in appendix 2.

Summary of the Planned Project

    The Applicants are planning to transport and liquefy supplies of
natural gas from the production fields at the Point Thomson and Prudhoe
Bay Units (PTU and PBU, respectively) on Alaska's North Slope for
export and potential in-state deliveries. To do this, the Alaska LNG
Project would consist of a new Gas Treatment Plant (GTP) on the North
Slope and associated pipelines to deliver the gas from the PTU and PBU
to the GTP, as well as a pipeline to deliver natural gas processing
byproducts from the GTP back to the PBU. The GTP would treat/process
the natural gas for delivery to an approximately 800-mile-long, 42-
inch-diameter pipeline that would transport the natural gas to a new
planned liquefaction facility on the eastern shore of Cook Inlet in the
Nikiski area of the Kenai Peninsula. Alaska LNG anticipates starting
construction in late 2019, with construction and startup taking
approximately 8 years. On this basis, the full planned Project system
would be placed into service about 2027.
    As previously described, the alternative we are scoping involves an
alternative route directly through the DNPP entrance area and closely
aligned with the Parks Highway (see figure in appendix 1). We are
requesting input from stakeholders on both the DNPP Alternative route
and the current route that is located outside the park.

The EIS Process

    The National Environmental Policy Act (NEPA) requires the
Commission to take into account the environmental impacts that could
result from an action whenever it considers the issuance of a
Certificate of Public Convenience and Necessity. NEPA also requires us
\2\ to discover and address concerns the public may have about
proposals. This process is referred to as scoping. The main goal of the
scoping process is to focus the analysis in the EIS on the important
environmental issues. By this notice, the Commission requests public
comments on the scope of the issues to address in the EIS. We will
consider all filed comments during the preparation of the EIS.
---------------------------------------------------------------------------

    \2\ ``We,'' ``us,'' and ``our'' refer to the environmental staff
of the Commission's Office of Energy Projects.
---------------------------------------------------------------------------

    In the EIS we will discuss impacts that could occur as a result of
the construction and operation of the planned project under these
general headings:
     Alternatives
     Geology and soils;
     Land use;
     Water resources, fisheries, and wetlands;
     Cultural resources;
     Vegetation and wildlife;
     Air quality and noise;
     Endangered and threatened species;
     Transportation;
     Socioeconomics;
     Public safety; and
     Cumulative impacts.
    We will also evaluate possible alternatives to the planned project
or portions of the project, and make recommendations on how to lessen
or avoid impacts on the various resource areas.
    Although no formal application has been filed, we have already
initiated our NEPA review under the Commission's pre-filing process.
The purpose of the pre-filing process is to encourage early involvement
of interested stakeholders and to identify and resolve issues before
the FERC receives an application. As part of our pre-filing review, we
have already met with the Applicants, jurisdictional agencies, Alaska
Native tribes, local officials, and other interested stakeholders to
discuss the project and identify issues/impacts and concerns before the
FERC receives an application.
    In October and November 2016, FERC conducted a total of 12 scoping
meetings throughout Alaska. During the scoping meetings, we garnered
feedback from the local communities, including residents, elected
officials, tribal leaders, community leaders, and other interested
stakeholders.
    Our independent analysis of the issues will be presented in the
EIS. The draft EIS will be published and distributed for public review
and comment. We will consider all timely comments and revise the
document, as necessary, before issuing a final EIS. To ensure your
comments are considered, please carefully follow the instructions in
the Public Participation section of this notice.

Environmental Mailing List

    The environmental mailing list includes federal, state, and local
government representatives and agencies; elected officials;
environmental and public interest groups; Native American Tribes; other
interested parties; and local libraries and newspapers. This list also
includes all affected landowners (as defined in the Commission's
regulations) who are potential right-of-way grantors, whose property
may be used temporarily for project purposes, or who own homes within
certain distances of aboveground facilities, and anyone who submits
comments on the project. We will update the environmental mailing list
as the analysis proceeds to ensure that we send the information related
to this environmental review to all individuals, organizations, and
government entities interested in and/or potentially affected by the
planned project.
    Copies of the completed draft EIS will be sent to the environmental
mailing list for public review and comment. If you would prefer to
receive a paper copy of the document instead of the CD version or would
like to remove your name from the mailing list, please return the
attached Information Request (appendix 3).

Becoming an Intervenor

    Once the Applicants file their application with the Commission, you
may want to become an ``intervenor'' which is an official party to the
Commission's proceeding. Intervenors play a more formal role in the
process and are able to file briefs, appear at hearings, and be heard
by the courts if they choose to appeal the Commission's final ruling.
An intervenor formally participates in the proceeding by filing a
request to intervene. Instructions for becoming an intervenor are in
the User's Guide under the ``efiling'' link on the Commission's Web
site. Please note that the Commission will not accept requests for
intervenor status at this time. You must wait until the Commission
receives a formal application for the project.

Additional Information

    Additional information about the project is available from the
Commission's Office of External Affairs, at (866) 208-FERC, or on the
FERC Web site (www.ferc.gov) using the eLibrary link. Click on the
eLibrary link, click on ``General Search'' and enter the docket number,
excluding the last three digits in the Docket Number field (i.e., PF14-
21). Be sure you have selected an appropriate date range. For
assistance, please contact FERC Online Support at
<EMAIL_ADDRESS>or toll free at<PHONE_NUMBER>, or for TTY,
contact<PHONE_NUMBER>. The eLibrary link also provides access to the
texts of formal documents issued by the Commission, such as orders,
notices, and rulemakings.
    In addition, the Commission offers a free service called
eSubscription which allows you to keep track of all formal issuances
and submittals in specific dockets. This can reduce the amount of time
you spend researching proceedings by automatically providing you with
notification of these filings, document summaries, and direct links to
the documents. Go to www.ferc.gov/docs-filing/esubscription.asp.
    Further, public meetings or site visits will be posted on the
Commission's calendar located at www.ferc.gov/EventCalendar/EventsList.aspx along with other related information. Finally,
additional information about the project can be seen from the
Applicant's Web site at http://ak-lng.com.

    Dated: July 27, 2016.
Kimberly D. Bose,
 Secretary.
[FR Doc. 2016-18580 Filed 8-4-16; 8:45 am]
 BILLING CODE 6717-01-P


[Federal Register Volume 76, Number 136 (Friday, July 15, 2011)]
[Notices]
[Pages 41859-41860]
[FR Doc No: 2011-17930]

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

Waiver Petition Docket Numbers FRA-2011-0002, CSX Transportation
Railroad, and FRA-2004-17565, Union Pacific Railroad; Public Hearing

    On February 23, 2011, the Federal Railroad Administration (FRA)
published a notice in the Federal Register (76 FR 10087) announcing the
CSX Transportation Railroad's (CSXT) request for a waiver to operate
RailRunner equipment in RailRunner only operations; operate RailRunner
equipment commingled with RoadRailer bi-modal equipment; and RailRunner
equipment operating behind various conventional railcars. On November
22, 2010, FRA published a notice in the Federal Register (75 FR 224)
announcing the Union Pacific Railroad's request for an amendment to
their existing waiver of certain provisions of the Safety Appliance
Standards, Title 49 Code of Federal Regulations (CFR) Part 231, and
Power Brakes and Drawbars per 49 CFR part 232 relative to commingling
RailRunner equipment with their RoadRailer trains.
    FRA has determined upon investigation that the facts of these two
proceedings warrant a public hearing. Accordingly, a hearing is hereby
scheduled to begin at 10 a.m. on August 3, 2011, at the Courtyard by
Marriott Capitol Hill/Navy Yard, 140 L Street, SE., Washington, DC
20003. Interested parties are invited to present oral statements at
this hearing. For information on facilities or services for persons
with disabilities or to request special assistance at the hearing,
contact FRA's Docket Clerk, Jerome Melis-Tull by telephone, e-mail, or
in writing at least 5 business days before the date of the hearing. Mr.
Melis-Tull's contact information is as follows: FRA, Office of Chief
Counsel, Mail Stop 10, 1200 New Jersey Avenue, SE., Washington, DC
20590; telephone<PHONE_NUMBER>; e-mail<EMAIL_ADDRESS>    The informal hearing will be conducted by a representative
designated by FRA in accordance with FRA's Rules of Practice (see
particularly 49 CFR 211.25). FRA's representative will make an opening
statement outlining the scope of the hearing, as well as any additional
procedures for the conduct of the hearing. The hearing will be a non-
adversarial proceeding in which all parties will be given the
opportunity to express their views regarding the waiver petition(s)
without cross-examination. After all initial statements have been
completed, those individuals wishing to make rebuttal statements will
be given an opportunity to do so.
    All communications concerning these proceedings should identify the
appropriate docket numbers and may be submitted by any of the following
methods:
     Web site: http://www.regulations.gov. Follow the online
instructions for submitting comments.
     Fax:<PHONE_NUMBER>
     Mail: Docket Operations Facility, U.S. Department of
Transportation, 1200 New Jersey Avenue, SE., W12-140, Washington, DC
20590.
     Hand Delivery: 1200 New Jersey Avenue, SE., Room W12-140,
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.
    All written communications concerning these proceedings are
available for examination during regular business hours (9 a.m.-5 p.m.)
at the above facility. All documents in the public docket are also
available for inspection and copying on the Internet

at the docket facility's Web site at http://www.regulations.gov.
    Anyone is able to search the electronic form of any written
communications and comments received into any of our dockets by the
name of the individual submitting the document (or signing the
document, if submitted on behalf of an association, business, labor
union, etc.). You may review DOT's complete Privacy Act Statement in
the Federal Register published on April 11, 2000 (Volume 65, Number 70;
Page 19477) or at http://www.dot.gov/privacy.html.

    Issued in Washington, DC, on July 12, 2011.
Robert C. Lauby,
Deputy Associate Administrator for Regulatory and Legislative
Operations.
[FR Doc. 2011-17930 Filed 7-14-11; 8:45 am]
BILLING CODE 4910-06-P