[Federal Register: June 20, 2007 (Volume 72, Number 118)]
[Proposed Rules]
[Page 33933-33937]
[DOCID:fr20jn07-36]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2005-NM-0006; FRL-8328-8]

Approval and Promulgation of Air Quality Implementation Plans;
New Mexico; Prevention of Significant Deterioration and New Source
Review

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA is proposing to approve revisions to the New Mexico
State Implementation Plan (SIP) that were submitted to EPA on April 11,
2002, and December 29, 2005. The proposed revisions modify New Mexico's
Prevention of Significant Deterioration (PSD) and Nonattainment New
Source Review (NNSR) regulations in the SIP to address changes to the
Federal PSD and NNSR regulations, which were promulgated by EPA on
December 31, 2002 and reconsidered with minor changes on November 7,
2003 (collectively, these two Federal actions are called the ``2002 New
Source Review (NSR) Reform Rules''). The proposed revisions include
provisions for baseline emissions calculations, an actual-to-projected-
actual methodology for calculating emissions changes, options for
plantwide applicability limits (PALs), and recordkeeping and reporting
requirements. EPA is proposing to approve these revisions pursuant to
section 110, parts C and D of the Federal Clean Air Act (Act).

DATES: Comments must be received on or before July 20, 2007.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R06-OAR-2005-NM-0006 by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov.

Follow the online instructions for submitting comments.
     U.S. EPA Region 6 ``Contact Us'' Web site: http://epa.gov/region6/r6coment.htm.
 Please click on ``6PD'' (Multimedia) and select

``Air'' before submitting comments.

     E-mail: Mr. Stanley M. Spruiell at
<EMAIL_ADDRESS>
     Fax: Mr. Stanley M. Spruiell, Air Permits Section (6PD-R),
at fax number<PHONE_NUMBER>.
     Mail: Mr. Stanley M. Spruiell, Air Permits Section (6PD-),
Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas,
Texas 75202-2733.
     Hand or Courier Delivery: Mr. Stanley M. Spruiell, Air
Permits Section (6PD-R), Environmental Protection Agency, 1445 Ross
Avenue, Suite 1200, Dallas, Texas 75202-2733. Such deliveries are
accepted only between the hours of 8 a.m. and 4 p.m. weekdays except
for legal holidays. Special arrangements should be made for deliveries
of boxed information.
    Instructions: Direct your comments to Docket ID Number EPA-R06-OAR-
2005-NM-0006. The EPA's policy is that all comments received will be
included in the public docket without change and may be made available
online at http://www.regulations.gov, including any personal

information provided, unless the comment includes information claimed
to be Confidential Business Information (CBI) or other information the
disclosure of which is restricted by statute. Do not submit information
through http://www.regulations.gov or e-mail if you believe that it is CBI or otherwise protected from disclosure. The http://

http://www.regulations.gov Web site is an ``anonymous access'' system, which

means that EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through http://www.regulations.gov
, your e-mail 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 along with any disk or CD-ROM
submitted. 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 and any form of encryption and should be free of any
defects or viruses.
    Docket: All documents in the docket are listed in the http://www.regulations.gov
 index. Although listed in the index, some

information is not publicly available, e.g., CBI or other information
the disclosure of which is restricted by statute. Certain other
material, such as copyrighted material, will be publicly available only
in hard copy. Publicly available docket materials are available either
electronically at http://www.regulations.gov or in hard copy at the Air

Permits Section (6PD-R), Environmental Protection Agency, 1445 Ross
Avenue, Suite 700, Dallas, Texas 75202-2733. The file will be made
available by appointment for public inspection in the Region 6 Freedom
of Information Act (FOIA) Review Room between the hours of 8:30 a.m.
and 4:30 p.m. weekdays except for legal holidays. Contact the person
listed in the FOR FURTHER INFORMATION CONTACT paragraph below to make
an appointment. If possible, please make the appointment at least two
working days in advance of your visit. A 15 cent per page fee will be
charged for making photocopies of documents. On the day of the visit,
please check in at the EPA Region 6 reception area on the seventh floor
at 1445 Ross Avenue, Suite 700, Dallas, Texas.
    The State submittal is also available for public inspection during
official business hours by appointment at the New Mexico Environment
Department, Air Quality Bureau, 1190 St. Francis Drive, Santa Fe, New
Mexico 87502.

FOR FURTHER INFORMATION CONTACT: Mr. Stanley M. Spruiell, Air Permits
Section (6PD-R), Environmental Protection Agency, Region 6, 1445 Ross
Avenue, Suite 700, Dallas, Texas 75202-2733, telephone<PHONE_NUMBER>;
fax number<PHONE_NUMBER>; e-mail address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Throughout this document, any reference to
``we,'' ``us,'' or ``our'' shall mean EPA.

Outline

I. What Action Is EPA Proposing?
II. What Is the Background for This Action?
III. What Is EPA's Analysis of New Mexico's NSR Rule Revisions?
IV. Does Approval of New Mexico NSR Rule Revisions Interfere With
Attainment, Reasonable Further Progress, or Any Other Applicable
Requirement of the Act?
V. What Action Is EPA Taking Today?
VI. Statutory and Executive Order Reviews

I. What Action Is EPA Proposing?

    On April 11, 2002, and December 29, 2005, New Mexico submitted
revisions to the New Mexico SIP. The submittal consists of revisions to
two regulations that are already part of the New Mexico SIP. The
affected regulations are 20.2.74 New Mexico Administrative Code (NMAC)
(Permits--Prevention of Significant Deterioration) and 20.2.79 NMAC
(Permits--Nonattainment Areas). The revisions will update New Mexico's
PSD and NNSR regulations to make them consistent with changes to the
Federal NSR regulations published on December 31, 2002 (67 FR 80186)
and November 7, 2003 (68 FR 63021). These EPA rulemakings are
collectively referred to as the ``2002 NSR Reform Rules.''
    This SIP revision also includes other non-substantive changes to
New Mexico's PSD and NNSR rules needed to update the regulatory
citations, make clarifying revisions to the regulatory text, and
correct typographical errors. These non-substantive changes do not
change the regulatory requirements. Please see the Technical Support
Document (TSD) for further information.
    The EPA is also proposing to approve portions of the SIP submittal
dated April 11, 2002. This action only approves the following
provisions of the April 11, 2002, SIP submittal:
     The removal of the definition of ``complete'' currently in
Paragraph O of <IP_ADDRESS> NMAC; and
     Revisions to <IP_ADDRESS>0 NMAC and 20.2.79 NMAC which
relate to the requirements for public notice and public participation
for PSD and NNSR permits.
    The EPA is only addressing two provisions of the April 11, 2002,
SIP submittal in this action because these provisions are the only
provisions in the submittal that address PSD and NNSR. The EPA will
take appropriate action on the remaining provisions of the April 11,
2002, submittal in a separate action.

II. What Is the Background for This Action?

    On December 31, 2002, EPA published final rule changes to 40 Code
of Federal Regulations (CFR) parts 51 and 52, regarding the Clean Air
Act's PSD and NNSR programs. See 67 FR 80186. On November 7, 2003, EPA
published a notice of final action on the reconsideration of the
December 31, 2002, final rule changes. See 68 FR 63021. In the November
7th final action, EPA added the definition of ``replacement unit,'' and
clarified issues regarding PALs. The purpose of today's action is to
propose approval of New Mexico's SIP submittal, which includes
revisions to the NNSR and PSD SIP rules.
    The 2002 NSR Reform Rules are part of EPA's implementation of parts
C and D of Title I of the Act, 42 U.S.C. 7470-7515, addressing major
sources and major modifications. Part C of Title I of the Act, 42
U.S.C. 7470-7492, is the PSD program, which applies in areas that meet
the National Ambient Air

Quality Standards (NAAQS)--``attainment areas''--as well as in areas
for which there is insufficient information to determine whether the
area meets the NAAQS--``unclassifiable areas.'' Part D of Title I of
the Act, 42 U.S.C. 7501-7515, is the NNSR program, which applies in
areas that are not in attainment of one or more of the NAAQS--
``nonattainment areas.'' EPA regulations implementing the NNSR and PSD
programs are contained in 40 CFR 51.165, 51.166, 52.21, 52.24, and
appendix S of part 51.
    The Act's NSR programs are preconstruction review and permitting
programs that apply to new and modified stationary sources of air
pollutants regulated under the Act. These programs include a
combination of air quality planning and air pollution control
technology program requirements. Briefly, section 109 of the Act, 42
U.S.C. 7409, requires EPA to promulgate primary NAAQS to protect public
health and secondary NAAQS to protect public welfare. Once EPA sets
those standards, each State must develop, adopt, and submit to EPA for
approval, a SIP that contains emissions limitations and other control
measures to attain and maintain the NAAQS. Each SIP is required to
contain a preconstruction review program for the construction and
modification of stationary sources of air pollution to assure that the
NAAQS are achieved and maintained; to protect areas of clean air; to
protect air quality related values (such as visibility) in national
parks and other areas; to assure that appropriate emissions controls
are applied; to maximize opportunities for economic development
consistent with the preservation of clean air resources; and to ensure
that any decision to increase air pollution is made only after full
public consideration of the consequences of the decision.
    The 2002 NSR Reform Rules made changes to five areas of the NSR
programs. The rules: (1) Provide a new method for determining baseline
actual emissions in the NNSR and PSD programs; (2) adopt for the NNSR
and PSD programs an actual-to-projected-actual methodology for
determining whether a major modification has occurred; (3) allow major
stationary sources to comply with PALs to avoid having a significant
emissions increase that triggers the requirements of the NNSR and PSD
programs; (4) provide a new applicability provision in the NNSR and PSD
programs for emissions units that are designated clean units; and (5)
exclude pollution control projects from the NNSR and PSD program
definitions of ``physical change or change in the method of
operation.'' For additional information on the 2002 NSR Reform Rules,
see 67 FR 80186 (December 31, 2002) and http://www.epa.gov/nsr.

    After the 2002 NSR Reform Rules were finalized and became effective
(March 3, 2003), various petitioners challenged numerous aspects of the
2002 NSR Reform Rules, along with portions of EPA's 1980 NSR Rules (45
FR 5276, August 7, 1980). On June 24, 2005, the D.C. Circuit Court of
Appeals issued a decision on the challenges to the 2002 NSR Reform
Rules. See New York v. United States, 413 F.3d 3 (D.C. Cir. 2005)
rehearing en banc denied (December 9, 2005). The Court vacated portions
of the Rules pertaining to clean units and pollution control projects;
remanded a portion of the Rules regarding recordkeeping, e.g., 40 CFR
51.165(a)(6) and 40 CFR 51.166(r)(6); and either upheld or did not
comment on the other provisions included as part of the 2002 NSR Reform
Rules. The EPA has not yet responded to the Court's remand regarding
the recordkeeping provisions. Today's action is consistent with the
decision of the D.C. Circuit Court of Appeals because New Mexico's
submittal does not include any portions of the 2002 NSR Reform Rules
that were vacated.
    The 2002 NSR Reform Rules require that no later than January 2,
2006, State agencies adopt and submit revisions to their SIP permitting
programs to implement the minimum program elements of the 2002 NSR
Reform Rules. See 40 CFR 51.166(a)(6)(i) (requiring State agencies to
adopt and submit PSD SIP revisions within three years after new
amendments are published in the Federal Register). State agencies may
meet the requirements of 40 CFR part 51 and the 2002 NSR Reform Rules
with different but equivalent regulations. If, however, a State decides
not to implement any of the new applicability provisions, that State
must demonstrate that its existing program is at least as stringent as
the Federal program. As discussed in further detail below, EPA believes
the revisions contained in this submittal are approvable for inclusion
into the New Mexico SIP.

III. What Is EPA's Analysis of New Mexico's NSR Rule Revisions?

    New Mexico currently has an EPA-approved NSR program for new and
modified sources, including a minor NSR preconstruction permit program,
an NNSR preconstruction permit program, and a PSD preconstruction
permit program. Today, EPA is proposing to approve revisions to New
Mexico's existing NNSR and PSD regulations in the SIP. These proposed
revisions were submitted to EPA on December 29, 2005. Copies of the
revised rules, as well as the TSD, can be obtained from the Docket, as
discussed in the ``Docket''' section above. A discussion of the
specific New Mexico rule changes that are proposed for inclusion in the
SIP is included in the TSD and summarized below.
    New Mexico's regulation 20.2.74 NMAC (Permits--Prevention of
Significant Deterioration) contains the preconstruction review program
that provides for the prevention of significant deterioration of
ambient air quality as required under part C of Title I of the Act. The
program applies to major stationary sources or modifications
constructed or installed in areas designated as attainment or
unclassifiable with respect to the NAAQS.
    New Mexico's permitting requirements for major sources in or
impacting upon non-attainment areas are set forth at 20.2.79 NMAC
(Permitting--Nonattainment Areas). The current New Mexico NNSR program
applies to the construction of any new major stationary source or major
modification of air pollution in a nonattainment area, as required by
part D of Title I of the Act. To receive approval to construct, a
source that is subject to this regulation must show that it will not
cause a net increase in pollution or create a delay in meeting the
NAAQS and that it will install and use control technology that achieves
the lowest achievable emission rate.
    These revisions to 20.2.74 NMAC and 20.2.79 NMAC update the
existing provisions to be consistent with the Federal 2002 NSR Reform
Rules. These revisions address baseline actual emissions, actual-to-
projected-actual applicability tests, and PALs. The revisions included
in New Mexico's NNSR and PSD programs are substantively the same as the
2002 NSR Reform Rules. As part of EPA's review of New Mexico's
regulations, EPA performed a line-by-line review of the proposed
revisions and determined that the proposed revisions are consistent
with the program requirements for the preparation, adoption and
submittal of implementation plans for NSR set forth at 40 CFR 51.165
and 51.166. This review is contained in the TSD for this action. The
New Mexico rules that EPA reviewed do not incorporate the portions of
the Federal rules that were vacated by the D.C. Circuit Court of
Appeals, such as the clean unit provisions and the pollution control
projects exclusion.

    The revised New Mexico rules include the recordkeeping provisions
set forth in the Federal rules at 40 CFR 51.165(a)(6) and 51.166(r)(6).
However, New Mexico chose to exclude the phrase ``reasonable
possibility.'' In the Federal rule, this phrase limits the
recordkeeping provisions to modifications at facilities that use the
actual-to-future-actual methodology to calculate emissions changes,
where there is a ``reasonable possibility'' that the modifications will
result in a significant emissions increase. Therefore, by leaving out
the phrase ``reasonable possibility'' from Subsection E of <IP_ADDRESS>0
NMAC and Subsection E of <IP_ADDRESS> NMAC, the NMED rules require all
modifications that use the actual-to-future-actual methodology to meet
the recordkeeping requirements. As noted earlier, EPA has not yet
responded to the D.C. Circuit Court of Appeals remand of the
recordkeeping provisions of EPA's 2002 NSR Reform Rules. As a result,
EPA's final decision with regard to the remand may require EPA to take
further action on this portion of NMED's rules. At present, however,
NMED's recordkeeping provisions are at least as stringent as the
Federal requirements, and are therefore approvable.
    In the April 11, 2002, submittal, New Mexico revised the
definitions by removing the definition of ``complete'' from Paragraph O
of <IP_ADDRESS> NMAC. The current SIP contained this definition of
``complete'' to meet the requirements of 40 CFR 51.166(b)(22). Although
the definition of ``complete'' is removed from <IP_ADDRESS> NMAC, other
provisions in 20.2.74 NMAC address the criteria that a permit
application must address in order to be administratively complete.
Specifically, <IP_ADDRESS>1 NMAC and <IP_ADDRESS>0 NMAC include each of the
elements that an application for a PSD permit must contain in order to
be administratively complete. These provisions include and meet the
requirements of 40 CFR 51.166(n). Thus the New Mexico rules contain
provisions that ensure that PSD permit applications are
administratively complete as required by the Federal rules.
    The April 11, 2002, submittal also includes revisions to
<IP_ADDRESS>0 NMAC and <IP_ADDRESS> NMAC, which include the schedules and
procedures to determine completeness of PSD and NNSR permit
applications and the requirements for public participation and notice.
The provisions were revised to provide that the New Mexico Environment
Department (NMED) will review a permit application and determine
whether it is administratively complete within 30 days after receipt of
the application. If the application is administratively complete, the
NMED will notify the applicant of this finding by certified mail. If
the application is administratively incomplete, the NMED will inform
the applicant of such finding by certified mail and state the
additional information or points of clarifications that are necessary
to deem the application administratively complete. When the NMED
receives additional information or clarification, it will promptly
review such information and determine whether the application is
administratively complete. The procedures for determining
administrative completeness and for public participation meet the
requirements of 40 CFR 51.161 and 40 CFR 51.166(q) which specifies the
public participation requirements for PSD permits.
    The April 11, 2002, submittal also revised <IP_ADDRESS>0 NMAC to
include a cross-reference to 20.2.72 NMAC. Specifically, <IP_ADDRESS>0
NMAC provides that in order for a PSD permit application to be
administratively complete, it must meet <IP_ADDRESS>1 NMAC and 20.2.72
NMAC. <IP_ADDRESS>1 NMAC includes the source information specified in 40
CFR 51.166(n) and is not substantively changed in this action. Under
20.2.72 NMAC, requirements of a complete application are identified in
Paragraph A of <IP_ADDRESS> NMAC. The cross-reference to Paragraph A of
<IP_ADDRESS> NMAC contains the elements for a complete application which
has non-substantive changes to the current SIP. It also contains
additional criteria that are in addition to the completeness elements
that a permit application must contain in order to be administratively
complete. Accordingly, New Mexico retains the minimum requirements for
determining whether an application is complete that meets the Federal
requirements. The TSD contains a detailed discussion of these
completeness provisions.

IV. Does Approval of New Mexico's Rule Revisions Interfere With
Attainment, Reasonable Further Progress, or Any Other Applicable
Requirement of the Act?

    The Act provides in Section 110(l) that:

    Each revision to an implementation plan submitted by a State
under this Act shall be adopted by such State after reasonable
notice and public hearing. The Administrator shall not approve a
revision of a plan if the revisions would interfere with any
applicable requirement concerning attainment and reasonable further
progress (as defined in section 171), or any other applicable
requirement of the Act.

    Because, as discussed above and in the TSD, the revisions to the
New Mexico NNSR and PSD programs are substantively the same as the 2002
NSR Reform Rules, without including any vacated provisions, we conclude
that these rules do not interfere with attainment, reasonable further
progress, or any other applicable requirement of the Act. See 67 FR
80186 and 68 FR 63021 for EPA's detailed explanation of the legal basis
for the 2002 NSR Reform Rules.

V. What Action Is EPA Taking Today?

    For the reasons discussed above, EPA is proposing to approve the
changes made in the two rules, 20.2.74 NMAC (Permits--Prevention of
Significant Deterioration) and 20.2.79 NMAC (Permits--Nonattainment
Areas) as revised in the following SIP submittals:
     The portion of the SIP revisions submitted April 11, 2002,
which revise 20.2.74 NMAC and 20.2.79 NMAC; and
     The NSR Reform provisions submitted December 29, 2005.

VI. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
proposed action is not a ``significant regulatory action'' and
therefore is not subject to review by the Office of Management and
Budget. For this reason, this action is also not subject to Executive
Order 13211, ``Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This
proposed action merely proposes to approve State law as meeting Federal
requirements and imposes no additional requirements beyond those
imposed by State law. Accordingly, the Administrator certifies that
this proposed rule will not have a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.). Because this rule proposes to approve pre-
existing requirements under State law and does not impose any
additional enforceable duty beyond that required by State law, it 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).
    This proposed rule also does not have tribal implications because
it will not have a substantial direct effect on one or more Indian
tribes, the relationship between the Federal Government and Indian
tribes, or the distribution of power and responsibilities between the

Federal Government and Indian tribes, as specified by Executive Order
13175 (65 FR 67249, November 9, 2000). This action also does not have
Federalism implications because it does not have substantial direct
effects on the States, the relationship between the national government
and the States, or the distribution of power and responsibilities among
the various levels of government, as specified in Executive Order 13132
(64 FR 43255, August 10, 1999). This action merely proposes to approve
a State rule implementing a Federal standard, and does not alter the
relationship or the distribution of power and responsibilities
established in the Clean Air Act. The EPA interprets Executive Order
13045, ``Protection of Children from Environmental Health Risks and
Safety Risks'' (62 FR 19885, April 23, 1997), as applying only to those
regulatory actions that concern health or safety risks such that the
analysis required under section 5-501 of the Executive Order has the
potential to influence the regulation. This proposed rule is not
subject to Executive Order 13045 because it would approve a State
program. Executive Order 12898 (59 FR 7629 (February 16, 1994))
establishes Federal executive policy on environmental justice. Because
this rule merely proposes to approve a State rule implementing a
Federal standard, EPA lacks the discretionary authority to modify
today's regulatory decision on the basis of environmental justice
considerations. In reviewing SIP submissions, EPA's role is to approve
State choices, provided that they meet the criteria of the Act. In this
context, in the absence of a prior existing requirement for the State
to use voluntary consensus standards (VCS), EPA has no authority to
disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Act. Thus, the requirements of section
12(d) of the National Technology Transfer and Advancement Act of 1995
(15 U.S.C. 272 note) do not apply. This proposed rule does not impose
an information collection burden under the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide,
Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping requirements, Sulfur oxides,
Volatile organic compounds.

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

    Dated: June 11, 2007.
Lawrence E. Starfield,
Acting Regional Administrator, Region 6.
 [FR Doc. E7-11942 Filed 6-19-07; 8:45 am]

BILLING CODE 6560-50-P


[Federal Register Volume 76, Number 201 (Tuesday, October 18, 2011)]
[Rules and Regulations]
[Pages 64245-64248]
[FR Doc No: 2011-27047]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 112

[EPA-HQ-OPA-2011-0838; FRL-9481-4]
RIN 2050-AG59

Oil Pollution Prevention; Spill Prevention, Control, and
Countermeasure (SPCC) Rule--Compliance Date Amendment for Farms

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to amend the date by which
farms must prepare or amend, and implement their Spill Prevention,
Control, and Countermeasure Plans to May 10, 2013.

DATES: This rule is effective on November 7, 2011 without further
notice, unless EPA receives adverse comment by November 2, 2011. If EPA
receives adverse comment, we will publish a timely withdrawal in the
Federal Register informing the public that the rule will not take
effect. For more information on effective and comment dates, see
SUPPLEMENTARY INFORMATION.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OPA-2011-0838, by one of the following methods:
     http://www.regulations.gov: Follow the on-line
instructions for submitting comments.
     Email<EMAIL_ADDRESS>     Fax:<PHONE_NUMBER>.
     Mail: EPA Docket Center (EPA/DC), Environmental Protection
Agency, Mailcode: 2822T, 1200 Pennsylvania Ave., NW., Washington, DC
20460.
     Hand Delivery: EPA Docket Center (EPA/DC), EPA West, Room
3334, 1301 Constitution Ave., NW., Washington, DC 20460. Attention
Docket ID No. EPA-HQ-OPA-2011-0838. 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-HQ-OPA-
2011-0838. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://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 http://www.regulations.gov or e-mail. The http://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 e-mail comment directly to EPA without
going through http://www.regulations.gov, your e-mail 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. For additional information about EPA's public
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the EPA-HQ-OPA-2011-
0838. This Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal holidays. The Docket telephone number
is<PHONE_NUMBER>. EPA Docket Center (EPA/DC), EPA West, Room 3334,
1301 Constitution Ave., NW., Washington, DC.

FOR FURTHER INFORMATION CONTACT: For general information, contact the
Superfund, TRI, EPCRA, RMP and Oil Information Center at<PHONE_NUMBER>
or TDD<PHONE_NUMBER> (hearing impaired). In the Washington, DC
metropolitan area, call<PHONE_NUMBER> or TDD<PHONE_NUMBER>. For more
detailed information on specific aspects of this final rule, contact
either Lynn Beasley at<PHONE_NUMBER><EMAIL_ADDRESS>or Mark W.
Howard at<PHONE_NUMBER> (howard.markw@epa.gov), U.S. Environmental
Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460-
0002, Mail Code 5104A.

SUPPLEMENTARY INFORMATION: EPA is providing 15 days for adverse
comment. EPA is providing a review time of 15 days because the
amendment to the compliance date is straightforward and there are no
additional amendments to the regulation. In addition, there is a
certain urgency of to this rule due to the impact that flooding has had
on farms to comply with this regulation, the low likelihood of comment,
and the fact that the targeted community is aware that an extension is
under consideration. Interested parties should be able to express their
comments within the 15 day period through electronic means. There is no
requirement to delay the effective date, because this rule relieves a
restriction and grants an exemption by extending the compliance date of
the Spill, Prevention, Control, and Countermeasure rule. 5 U.S.C.
553(d)(1). It is also not a ``major rule'' for the purposes of the
Congressional Review Act. If EPA receives adverse comment, we will
publish a timely withdrawal in the Federal Register informing the
public that the rule will not take effect.

I. Why is EPA using a direct final rule?

    EPA is publishing this rule without a prior proposed rule because
we view this as a noncontroversial action and anticipate no adverse
comment since this action provides owners and operators of farms an
additional 18 months to prepare or amend, and implement their Spill
Prevention, Control, and Countermeasure (SPCC) Plan. This action does
not add an additional burden to comply with the regulations contained
in 40 CFR part 112--Oil Pollution Prevention. However, in the
``Proposed Rules'' section of today's Federal Register, we are also
publishing a separate proposed rule to provide owners and operators of
farms an additional 18 months to prepare or amend, and implement their
SPCC Plan, if adverse comments are received on this direct final rule.
We will not institute a second comment period on this action. Any
parties interested in commenting must do so at this time. For further
information about commenting on this rule, see the ADDRESSES section of
this document.
    If EPA receives adverse comment, we will publish a timely
withdrawal in the Federal Register informing the public that this
direct final rule will not take effect. We would address all public
comments in any subsequent final rule based on the proposed rule.

II. Does this action apply to me?

------------------------------------------------------------------------
                      Industry sector                         NAICS code
------------------------------------------------------------------------
Farms......................................................     111, 112
Government.................................................           92
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table lists the types of entities that EPA is now aware
could potentially be regulated by this action. Other types of entities
not listed in the table could also be regulated. If you have questions
regarding the applicability of this action to a particular entity,
consult the person listed in the preceding FOR FURTHER INFORMATION
CONTACT section.

III. What should I consider as I prepare my comments for EPA?

    A. Submitting CBI. Do not submit this information to EPA through
http://www.regulations.gov or email. Clearly mark the part or all of
the information that you claim to be CBI. For CBI information in a disk
or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM
as CBI and then identify electronically within the disk or CD ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
the procedures set forth in 40 CFR part 2.
    B. Tips for Preparing Your Comments. When submitting comments,
remember to:
     Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
     Follow directions--The agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree; suggest alternatives
and substitute language for your requested changes.
     Describe any assumptions and provide any technical
information and/or data that you used.
     If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
     Provide specific examples to illustrate your concerns, and
suggest alternatives.
     Explain your views as clearly as possible.
     Make sure to submit your comments by the comment period
deadline identified.

IV. What does this amendment do?

    This direct final rule amends the date by which farms as defined in
section 112.2 must prepare or amend, and implement their SPCC Plan to
May 10, 2013. A farm is defined in this section as a facility on a
tract of land devoted to the production of crops or raising of animals,
including fish, which produced and sold, or normally would have
produced and sold, $1,000 or more of agricultural products during a
year.
    On June 19, 2009 (74 FR 29136), EPA issued a final rule in the
Federal Register that amended the dates by which facilities must
prepare or amend their SPCC Plans, and implement those Plans to
November 10, 2010. Then on October 14, 2010 (75 FR 63093), EPA issued a
final rule in the Federal Register with a new compliance date of
November 10, 2011, by which certain facilities must prepare or amend
and implement their SPCC Plans, providing an additional year for the
remaining facilities. This action further extends the compliance date
to May 10, 2013 for the owners or operators of farms as defined in 40
CFR 112.2. The Agency recognizes that the owners or operators of some
facilities excluded from the extension of the compliance date may still
require additional time to amend or prepare their SPCC Plans as a
result of either non-availability of qualified personnel, or delays in
construction or equipment delivery beyond the control and without the
fault of the owner or operator. If so, the owner or operator of the
facility may submit a written request for additional time to amend or
prepare a SPCC Plan to the Regional Administrator in accordance with
Sec.  112.3(f). This rule is not the vehicle for other extensions. EPA
is not extending the compliance date for any other facilities as other
facilities are not season-dependent and are less likely to be impacted
by severe weather conditions. Additionally, other facilities retain the
alternative mechanism for requesting an extension to the compliance
date through Sec.  112.3(f). Interested facilities may also petition
the agency to consider additional rulemaking.
    A large segment of the continental United States was affected by
flooding during the spring and summer of 2011. Other areas were
impacted by devastating fires and drought conditions. Many counties in
several States were declared disaster areas by either the Federal or
their State government or both. EPA has received a number of letters
and other correspondence, from State Agricultural Departments and other
parties, explaining the impact of these recent floods on the owners and
operators of farms and their ability to comply with the SPCC rule.
These owners and operators have experienced interruptions in planting,
cultivation and harvesting due to these floods. According to the
Federal Emergency Management Agency (FEMA) in 2011, the Agency issued
56 Major Disaster/Emergency Declarations specifically associated with
flooding events. According to FEMA's 2011 data, approximately two
thirds of the fifty states had a FEMA flooding Major Disaster/Emergency
Declarations. Almost a quarter of the fifty states had multiple FEMA
declarations due to flooding.\1\ These declarations are widespread
throughout the crop production areas of the country. The Agency was
also advised in the correspondence that there may be a lack of
available qualified Professional Engineers (PEs) in some areas of the
country to assist in the preparation, implementation, and review of
SPCC Plans for farms.
---------------------------------------------------------------------------

    \1\ http://www.fema.gov/news/disasters.fema.
---------------------------------------------------------------------------

    In addition, despite the targeted farm outreach efforts by EPA over
the past ten months, the sheer number of farms throughout the U.S.
makes it a challenge to reach those owners and operators of farms that
may be subject to the SPCC Plan regulations. As a result, the Agency
believes that farms, as defined in section 112.2, need additional time
to come into compliance with the requirements to prepare or amend and
implement a SPCC Plan. Thus, the Agency has decided to extend the
compliance date by which owners or operators of a farm must prepare or
amend and implement a SPCC Plans to May 10, 2013. The additional 18
months allows enough time for farms to come in compliance with this
regulation. The owners and operators of farms are strongly encouraged
not to delay, and to take advantage of the off-season for planting and
growing, in preparing their SPCC Plans. However, any farm owner or
operator who is not able to come into compliance by May 10, 2013, and
wishes to seek a further extension of the compliance date, should
submit a written request to the Regional Administrator of the EPA
Regional Office for the State where the farm is located in accordance
with paragraph (f) of 40 CFR 112.3.
    The amendment to the compliance date does not remove the regulatory
requirement for owners or operators of farms in operation before August
16,

2002, to have and to maintain and continue implementing a SPCC Plan in
accordance with the SPCC regulations then in effect. Such owners and
operators continue to be required to maintain plans during the interim
until the applicable compliance date for amending and implementing the
amended Plans. In addition, the amendment of the compliance date does
not relieve the owners and operators of farms from the potential
liability under the Clean Water Act or other environmental statutes or
regulations for any spills (see 40 CFR part 110) that may occur.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review

    This action is not a ``significant regulatory action'' under the
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is
therefore not subject to review under Executive Orders 12866 and 13563
(76 FR 3821, January 21, 2011).

B. Paperwork Reduction Act

    This direct final action does not impose any new information
collection burden. The amendments in this direct final rule simply
extend the compliance date for farms. This direct final rule does not
change any reporting requirements in the general provisions. However,
the Office of Management and Budget (OMB) has previously approved the
information collection requirements contained in the existing subparts
of 40 CFR 112 under the provisions of the Paperwork Reduction Act, 44
U.S.C. 3501 et seq. and has assigned OMB control number 2050-0021. The
OMB control numbers for EPA's regulations in 40 CFR are listed in 40
CFR part 9. Subparts that will be added through separate rulemakings
will document the respective information collection requirements in
their own ICR documents.

C. Regulatory Flexibility Act (RFA)

    The RFA generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations, and small
governmental jurisdictions.
    For purposes of assessing the impacts of this rule on small
entities, small entity is defined as: (1) A small business as defined
by the Small Business Administration's regulations at 13 CFR 121.201;
(2) a small governmental jurisdiction that is a government of a city,
county, town, school district or special district with a population of
less than 50,000; and (3) a small organization that is any not-for-
profit enterprise which is independently owned and operated and is not
dominant in its field.
    After considering the economic impacts of this final rule on small
entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. The direct
final rule simply amends the date for compliance. The direct final rule
does not itself add any additional subparts or requirements. The direct
final rule will not impose any new requirements on small entities.

D. Unfunded Mandates Reform Act (UMRA)

    This action contains no Federal mandates under the provisions of
title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538 for State, local, or tribal governments or the private
sector. The action imposes no enforceable duty on any State, local or
tribal governments or the private sector. Therefore, this action is not
subject to the requirements of sections 202 or 205 of the UMRA. This
action is also not subject to the requirements of section 203 of UMRA
because it contains no regulatory requirements that might significantly
or uniquely affect small governments. The amendments in this final rule
change the dates for compliance for farms.

E. Executive Order 13132: Federalism

    Executive Order (EO) 13132, entitled ``Federalism'' (64 FR 43255,
August 10, 1999), requires EPA to develop an accountable process to
ensure ``meaningful and timely input by State and local officials in
the development of regulatory policies that have Federalism
implications.'' ``Policies that have Federalism implications'' is
defined in the EO to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
    This final rule does not have Federalism implications. It will not
have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in EO 13132.
    This amendment applies directly to farms. They do not apply to
governmental entities unless the government entity owns a farm, as
defined in 40 CFR 112.2 Definitions. This regulation also does not
limit the power of States or localities to regulate farms. Thus, EO
13132 does not apply to this final rule.

F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

    This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). The changes in
this direct final rule do not result in any changes to the requirements
of the 2009 rule. Thus Executive Order 13175 does not apply to this
action.

G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks

    This direct final rule is not subject to EO 13045 (62 FR 19885,
April 23, 1997) because it is not economically significant as defined
in EO 12866, and because the Agency does not believe the environmental
health or safety risks addressed by this action present a
disproportionate risk to children. The changes in this direct final
rule do not result in any changes to the requirements applicable to
farms, final rule other than the date for compliance.

H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 (66 FR 28355
(May 22, 2001)), because it is not a significant regulatory action
under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. NTTAA directs EPA to provide
Congress, through OMB, explanations

when the Agency decides not to use available and applicable voluntary
consensus standards.
    This action does not involve technical standards. Therefore, EPA
did not consider the use of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, February 16, 1994) establishes
Federal executive policy on environmental justice. Its main provision
directs Federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
    EPA has determined that the direct final amendments will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because the amendments do
not affect the level of protection provided to human health or the
environment.

K. Congressional Review Act

    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 rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the U.S. 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). This rule will be effective November 7, 2011.

List of Subjects in 40 CFR Part 112

    Oil pollution prevention, Farms, Compliance date, Reporting and
recordkeeping requirements.

    Dated: October 13, 2011.
Lisa P. Jackson,
Administrator.
    For the reasons set out above, title 40, chapter I of the Code of
Federal Regulations is amended as follows:

PART 112--OIL POLLUTION PREVENTION

0
1. The authority citation for part 112 continues to read as follows:

    Authority:  33 U.S.C. 1251 et seq.; 33 U.S.C. 2720; and E.O.
12777 (October 18, 1991), 3 CFR, 1991 Comp., p. 351.

0
2. Section 112.3 is amended by adding paragraph (a)(3) to read as
follows:

Sec.  112.3  Requirement to prepare and implement a Spill Prevention,
Control, and Countermeasure Plan.

* * * * *
    (a) * * *
    (3) If your farm, as defined in Sec.  112.2, was in operation on or
before August 16, 2002, you must maintain your Plan, but must amend it,
if necessary to ensure compliance with this part, and implement the
amended Plan no later than May 10, 2013. If your farm becomes
operational after August 16, 2002, through May 10, 2013, and could
reasonably be expected to have a discharge as described in Sec.
112.1(b), you must prepare and implement a Plan on or before May 10,
2013. If your farm becomes operational after May 10, 2013, and could
reasonably be expected to have a discharge as described in Sec.
112.1(b), you must prepare and implement a Plan before you begin
operations.
* * * * *
[FR Doc. 2011-27047 Filed 10-17-11; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register: October 6, 2010 (Volume 75, Number 193)]
[Notices]
[Page 61790-61793]
[DOCID:fr06oc10-146]

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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 29450; 812-13769]

Capital Southwest Corporation; Notice of Application

September 29, 2010.
AGENCY: Securities and Exchange Commission (``Commission'').

ACTION: Notice of an application for an order under section 6(c) of the
Investment Company Act of 1940 (the ``Act'') for an exemption from
sections 23(a), 23(b) and 63 of the Act, and under sections 57(a)(4)
and 57(i) of the Act and rule 17d-1 under the Act permitting certain
joint transactions otherwise prohibited by section 57(a)(4) of the Act.

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Summary of the Application: Applicant, Capital Southwest Corporation
(``Capital Southwest''), requests an order to permit it to issue
restricted shares of its common stock to its officers and employees
under the terms of its employee compensation plan.

Filing Dates: The application was filed on May 5, 2010, and amended on
May 17, 2010 and September 24, 2010.

Hearing or Notification of Hearing: An order granting the application
will be issued unless the Commission orders a hearing. Interested
persons may request a hearing by writing to the Commission's Secretary
and serving applicant with a copy of the request, personally or by
mail. Hearing requests should be received by the Commission by 5:30
p.m. on October 25, 2010, and should be accompanied by proof of service
on applicant, in the form of an affidavit or, for lawyers, a
certificate of service. Hearing requests should state

the nature of the writer's interest, 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.

ADDRESSES: Secretary, U.S. Securities and Exchange Commission, 100 F
Street, NE., Washington, DC 20549-1090. Applicant, 12900 Preston Road,
Suite 700, Dallas, TX 75230.

FOR FURTHER INFORMATION CONTACT: John Yoder, Senior Counsel, at (202)
551-6878, or Michael W. Mundt, Assistant Director, at<PHONE_NUMBER>
(Division of Investment Management, Office of Investment Company
Regulation).

SUPPLEMENTARY INFORMATION: The following is a summary of the
application. The complete application may be obtained via the
Commission's Web site 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>.

Applicant's Representations

    1. Capital Southwest, a Texas corporation, is an internally
managed, non-diversified, closed-end investment company that has
elected to be regulated as a business development company (``BDC'')
under the Act.\1\ Capital Southwest provides debt and equity growth
capital to privately-held middle-market companies and its investment
objective is to achieve capital appreciation through long-term
investments in businesses believed to have favorable growth potential.
Capital Southwest's investment interests are focused on expansion
financings, management buyouts, minority recapitalizations, industry
consolidations and early-stage financings in a broad range of industry
segments. Shares of Capital Southwest's common stock are traded on the
NASDAQ Global Select Market under the symbol ``CSWC.'' As of April 13,
2010, there were 3,741,638 shares of Capital Southwest's common stock
outstanding. As of that date, Capital Southwest had 514 employees,
including employees of its wholly-owned subsidiaries.
---------------------------------------------------------------------------

    \1\ Capital Southwest was incorporated in Texas in 1961. On
March 30, 1988 Capital Southwest elected to be regulated as a BDC.
Section 2(a)(48) of the Act defines a BDC to be any closed-end
investment company that operates for the purpose of making
investments in securities described in sections 55(a)(1) through
55(a)(3) of the Act and makes available significant managerial
assistance with respect to the issuers of such securities.
---------------------------------------------------------------------------

    2. Capital Southwest currently has a five-member board of directors
(the ``Board'') of whom one is an ``interested person'' of Capital
Southwest within the meaning of section 2(a)(19) of the Act and four
are not interested persons (the ``Non-interested Directors''). Capital
Southwest has four directors who are neither officers nor employees of
Capital Southwest.
    3. Capital Southwest believes that its successful performance
depends on its ability to offer fair compensation packages to its
professionals that are competitive with those offered by other
investment management businesses. Capital Southwest believes that the
ability to offer equity-based compensation to its professionals is
vital to Capital Southwest's future growth and success. Capital
Southwest wishes to adopt the Capital Southwest Corporation 2010
Restricted Stock Award Plan (the ``Plan'') providing for the periodic
issuance of shares of restricted stock (i.e., stock that, at the time
of issuance, is subject to certain forfeiture restrictions, and thus is
restricted as to its transferability until such forfeiture restrictions
have lapsed) (the ``Restricted Stock'') for its employees and officers,
and employees of its wholly-owned subsidiaries (each a ``Participant,''
and collectively, the ``Participants'').
    4. The Plan will authorize the issuance of shares of Restricted
Stock subject to certain forfeiture restrictions. These restrictions
may relate to continued employment (lapsing either on an annual or
other period basis or on a ``cliff'' basis, i.e., at the end of a
stated period of time), or other restrictions deemed by the
Compensation Committee (as defined below) to be appropriate.\2\ The
Restricted Stock will be subject to restrictions on transferability and
other restrictions as required by the Compensation Committee. Except to
the extent restricted under the terms of the Plan, a Participant
granted Restricted Stock will have all the rights of any other
shareholder, including the right to vote the Restricted Stock and the
right to receive dividends. During the restriction period, the
Restricted Stock generally may not be sold, transferred, pledged,
hypothecated, margined, or otherwise encumbered by the Participant.
Except as the Board otherwise determines, upon termination of a
Participant's employment during the applicable restriction period,
Restricted Stock for which forfeiture restrictions have not lapsed at
the time of such termination shall be forfeited.
---------------------------------------------------------------------------

    \2\ The Compensation Committee of the Board (the ``Compensation
Committee'') is comprised solely of the Non-interested Directors.
---------------------------------------------------------------------------

    5. The maximum amount of Restricted Stock that may be issued under
the Plan will be 10% of the outstanding shares of common stock of
Capital Southwest on the effective date of the Plan plus 10% of the
number of shares of Capital Southwest's common stock issued or
delivered by Capital Southwest (other than pursuant to compensation
plans) during the term of the Plan.\3\ The Plan limits the total number
of shares that may be awarded to any single Participant in a single
year to 6250 shares. In addition, no Restricted Stock Participant may
be granted more than 25% of the shares reserved for issuance under the
Plan. The Plan will be administered by the Compensation Committee,
which, upon approval of the required majority, as defined in section
57(o) of the Act,\4\ of the Board, will award shares of Restricted
Stock to the Participants from time to time as part of the
Participants' compensation based on a Participant's actual or expected
performance and value to Capital Southwest.
---------------------------------------------------------------------------

    \3\ For purposes of calculating compliance with this limit,
Capital Southwest will count as Restricted Stock all shares of its
common stock that are issued pursuant to the Plan less any shares
that are forfeited back to Capital Southwest and cancelled as a
result of forfeiture restrictions not lapsing.
    \4\ The term ``required majority,'' when used with respect to
the approval of a proposed transaction, plan, or arrangement, means
both a majority of a BDC's directors or general partners who have no
financial interest in such transaction, plan, or arrangement and a
majority of such directors or general partners who are not
interested persons of such company.
---------------------------------------------------------------------------

    6. Each issuance of Restricted Stock under the Plan will be
approved by the required majority, as defined in section 57(o) of the
Act, of Capital Southwest's directors on the basis that the issuance is
in the best interests of Capital Southwest and its shareholders. The
date on which the required majority approves an issuance of Restricted
Stock will be deemed the date on which the subject Restricted Stock is
granted.
    7. The Plan has been approved by the Compensation Committee, as
well as the Board, including the required majority as defined in
section 57(o) of the Act. The Plan will be submitted for approval to
Capital Southwest's shareholders, and will become effective upon such
approval, subject to and following receipt of the order.

Applicant's Legal Analysis

Sections 23(a) and (b), Section 63

    1. Under section 63 of the Act, the provisions of section 23(a) of
the Act generally prohibiting a registered closed-end investment
company from issuing securities for services or for

property other than cash or securities are made applicable to BDCs.
This provision would prohibit the issuance of Restricted Stock as a
part of the Plan.
    2. Section 23(b) generally prohibits a closed-end management
investment company from selling its common stock at a price below its
current net asset value (``NAV''). Section 63(2) makes section 23(b)
applicable to BDCs unless certain conditions are met. Because
Restricted Stock that would be granted under the Plan would not meet
the terms of section 63(2), sections 23(b) and 63 prohibit the issuance
of the Restricted Stock.
    3. Section 6(c) provides that the Commission may, by order upon
application, conditionally or unconditionally exempt any person,
security, or transaction, or any class or classes of persons,
securities or transactions, from any provision of the Act, if and to
the extent that the exemption is necessary or appropriate in the public
interest and consistent with the protection of investors and the
purposes fairly intended by the policy and provisions of the Act.
    4. Capital Southwest requests an order pursuant to section 6(c) of
the Act granting an exemption from the provisions of sections 23(a) and
(b) and section 63 of the Act.\5\ Capital Southwest states that the
concerns underlying those sections include: (a) Preferential treatment
of investment company insiders and the use of options and other rights
by insiders to obtain control of the investment company; (b)
complication of the investment company's structure that makes it
difficult to determine the value of the company's shares; and (c)
dilution of shareholders' equity in the investment company. Capital
Southwest states that the Plan does not raise concerns about
preferential treatment of Capital Southwest's insiders because the Plan
is a bona fide compensation plan of the type common among corporations
generally. In addition, section 61(a)(3)(B) of the Act permits a BDC to
issue to its officers, directors and employees, pursuant to an
executive compensation plan, warrants, options and rights to purchase
the BDC's voting securities, subject to certain requirements. Capital
Southwest states that, for reasons that are unclear, section 61 and its
legislative history do not address the issuance by a BDC of restricted
stock as incentive compensation. Capital Southwest states, however,
that the issuance of Restricted Stock is substantially similar, for
purposes of investor protection under the Act, to the issuance of
warrants, options, and rights as contemplated by section 61. Capital
Southwest also asserts that the Plan would not become a means for
insiders to obtain control of Capital Southwest because the number of
shares of Capital Southwest issuable under the Plan would be limited as
set forth in the application. Moreover, no individual Restricted Stock
Participant could be issued more than 25% of the shares reserved for
issuance under the Plan.
---------------------------------------------------------------------------

    \5\ Capital Southwest asks that the order apply also to any
future officers and employees of Capital Southwest and future
employees of Capital Southwest's wholly-owned subsidiaries that are
eligible to receive Restricted Stock under the Plan. Additionally,
to the extent that Capital Southwest creates or acquires additional
wholly-owned subsidiaries, and to the extent that such future
subsidiaries have employees to whom the relief requested herein
would otherwise apply, Capital Southwest asks that such relief, if
granted, be extended to such employees of any future subsidiaries.
---------------------------------------------------------------------------

    5. Capital Southwest further states that the Plan will not unduly
complicate Capital Southwest's structure because equity-based
compensation arrangements are widely used among corporations and
commonly known to investors. Capital Southwest notes that the Plan will
be submitted to its shareholders for their approval. Capital Southwest
represents that a concise, ``plain English'' description of the Plan,
including its potential dilutive effect, will be provided in the proxy
materials that will be submitted to Capital Southwest's shareholders.
Capital Southwest also states that it will comply with the proxy
disclosure requirements in Item 10 of Schedule 14A under the Securities
Exchange Act of 1934 (the ``Exchange Act''). Capital Southwest further
notes that the Plan will be disclosed to investors in accordance with
the requirements of the Form N-2 registration statement for closed-end
investment companies, and pursuant to the standards and guidelines
adopted by the Financial Accounting Standards Board for operating
companies. In addition, Capital Southwest will comply with the
disclosure requirements for executive compensation plans applicable to
operating companies under the Exchange Act.\6\ Capital Southwest thus
concludes that the Plan will be adequately disclosed to investors and
appropriately reflected in the market value of Capital Southwest's
shares.
---------------------------------------------------------------------------

    \6\ Capital Southwest will comply with the amendments to the
disclosure requirements for executive and director compensation,
related party transactions, director independence and other
corporate governance matters, and security ownership of officers and
directors to the extent adopted and applicable to BDCs. See
Executive Compensation and Related Party Disclosure, Securities Act
Release No. 8655 (Jan. 27, 2006) (proposed rule); Executive
Compensation and Related Party Disclosure, Securities Act Release
No. 8732A (Aug. 29, 2006) (final rule and proposed rule), as amended
by Executive Compensation Disclosure, Securities Act Release No.
8765 (Dec. 22, 2006) (adopted as interim final rules with request
for comments).
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    6. Capital Southwest acknowledges that, while awards granted under
the Plan would have a dilutive effect on the shareholders' equity in
Capital Southwest, that effect would be outweighed by the anticipated
benefits of the Plan to Capital Southwest and its shareholders. Capital
Southwest asserts that it needs the flexibility to provide the
requested equity-based employee compensation in order to be able to
compete effectively with other financial services firms for talented
professionals. These professionals, Capital Southwest suggests, in turn
are likely to increase Capital Southwest's performance and shareholder
value. Capital Southwest also asserts that equity-based compensation
would more closely align the interests of Capital Southwest's employees
with those of its shareholders. In addition, Capital Southwest states
that its shareholders will be further protected by the conditions to
the requested order that assure continuing oversight of the operation
of the Plan by Capital Southwest's Board.

Section 57(a)(4), Rule 17d-1

    7. Section 57(a) proscribes certain transactions between a BDC and
persons related to the BDC in the manner described in section 57(b)
(``57(b) persons''), absent a Commission order. Section 57(a)(4)
generally prohibits a 57(b) person from effecting a transaction in
which the BDC is a joint participant absent such an order. Rule 17d-1,
made applicable to BDCs by section 57(i), proscribes participation in a
``joint enterprise or other joint arrangement or profit-sharing plan,''
which includes a stock option or purchase plan. Employees and directors
of a BDC are 57(b) persons. Thus, the issuance of shares of Restricted
Stock could be deemed to involve a joint transaction involving a BDC
and a 57(b) person in contravention of section 57(a)(4). Rule 17d-1(b)
provides that, in considering relief pursuant to the rule, the
Commission will consider (i) whether the participation of the company
in a joint enterprise is consistent with the Act's policies and
purposes and (ii) the extent to which that participation is on a basis
different from or less advantageous than that of other participants.

    8. Capital Southwest requests an order pursuant to section 57(a)(4)
and rule 17d-1 to permit the Plan. Capital Southwest states that the
Plan, although benefiting the Participants and Capital Southwest in
different ways, is in the interests of Capital Southwest's shareholders
because the Plan will help align the interests of Capital Southwest's
employees and officers with those of its shareholders, which will
encourage conduct on the part of those employees and officers designed
to produce a better return for Capital Southwest's shareholders.

Applicant's Conditions

    Applicant agrees that the order granting the requested relief will
be subject to the following conditions:
    1. The Plan will be authorized by Capital Southwest's shareholders.
    2. Each issuance of Restricted Stock to officers and employees will
be approved by the required majority, as defined in section 57(o) of
the Act, of Capital Southwest's directors on the basis that such
issuance is in the best interests of Capital Southwest and its
shareholders.
    3. The amount of voting securities that would result from the
exercise of all of Capital Southwest's outstanding warrants, options,
and rights, together with any Restricted Stock issued pursuant to the
Plan, at the time of issuance shall not exceed 25% of the outstanding
voting securities of Capital Southwest, except that if the amount of
voting securities that would result from the exercise of all of Capital
Southwest's outstanding warrants, options, and rights issued to Capital
Southwest's directors, officers, and employees, together with any
Restricted Stock issued pursuant to the Plan, would exceed 15% of the
outstanding voting securities of Capital Southwest, then the total
amount of voting securities that would result from the exercise of all
outstanding warrants, options, and rights, together with any Restricted
Stock issued pursuant to the Plan, at the time of issuance shall not
exceed 20% of the outstanding voting securities of Capital Southwest.
    4. The maximum amount of shares of Restricted Stock that may be
issued under the Plan will be 10% of the outstanding shares of common
stock of Capital Southwest on the effective date of the Plan plus 10%
of the number of shares of Capital Southwest's common stock issued or
delivered by Capital Southwest (other than pursuant to compensation
plans) during the term of the Plan.
    5. The Board will review the Plan at least annually. In addition,
the Board will review periodically the potential impact that the
issuance of Restricted Stock under the Plan could have on Capital
Southwest's earnings and NAV per share, such review to take place prior
to any decisions to grant Restricted Stock under the Plan, but in no
event less frequently than annually. Adequate procedures and records
will be maintained to permit such review. The Board will be authorized
to take appropriate steps to ensure that the grant of Restricted Stock
under the Plan would not have an effect contrary to the interests of
Capital Southwest's shareholders. This authority will include the
authority to prevent or limit the granting of additional Restricted
Stock under the Plan. All records maintained pursuant to this condition
will be subject to examination by the Commission and its staff.

    For the Commission, by the Division of Investment Management,
under delegated authority.
Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010-25069 Filed 10-5-10; 8:45 am]
BILLING CODE 8010-01-P


[Federal Register Volume 77, Number 75 (Wednesday, April 18, 2012)]
[Rules and Regulations]
[Pages 23130-23132]
[FR Doc No: 2012-9078]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2012-0243; FRL-9659-8]

Revisions to the California State Implementation Plan, Northern
Sierra and Sacramento Metropolitan Air Quality Management District

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve revisions to the
Northern Sierra Air Quality Management District (NSAQMD) and Sacramento
Metropolitan Air Quality Management District (SMAQMD) portions of the
California State Implementation Plan (SIP). These revisions concern
negative declarations for volatile organic compound (VOC) source
categories for the NSAQMD and SMAQMD. We are approving these negative
declarations under the Clean Air Act as amended in 1990 (CAA or the
Act).

DATES: This rule is effective on June 18, 2012 without further notice,
unless EPA receives adverse comments by May 18, 2012. If we receive
such comments, we will publish a timely withdrawal in the Federal
Register to notify the public

that this direct final rule will not take effect.

ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-
2012-0243, by one of the following methods:
    1. Federal eRulemaking Portal: www.regulations.gov. Follow the on-
line instructions.
    2. Email<EMAIL_ADDRESS>    3. Mail or deliver: Andrew Steckel (Air-4), U.S. Environmental
Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA
94105-3901.
    Instructions: All comments 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 Confidential Business Information (CBI) or other information
whose disclosure is restricted by statute. Information that you
consider CBI or otherwise protected should be clearly identified as
such and should not be submitted through www.regulations.gov or email.
www.regulations.gov is an ``anonymous access'' system, and EPA will not
know your identity or contact information unless you provide it in the
body of your comment. If you send email directly to EPA, your email
address will be automatically captured and included as part of the
public comment. 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.
    Docket: The index to the docket for this action is available
electronically at www.regulations.gov and in hard copy at EPA Region
IX, 75 Hawthorne Street, San Francisco, California. While all documents
in the docket are listed in the index, some information may be publicly
available only at the hard copy location (e.g., copyrighted material),
and some may not be publicly available in either location (e.g., CBI).
To inspect the hard copy materials, please schedule an appointment
during normal business hours with the contact listed in the FOR FURTHER
INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Cynthia Allen, EPA Region IX, (415)
947-4120<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and
``our'' refer to EPA.

Table of Contents

I. The State's Submittal
    A. What negative declarations did the State submit?
    B. Are there other versions of these negative declarations?
    C. What is the purpose of the submitted negative declarations?
II. EPA's Evaluation and Action
    A. How is EPA evaluating the negative declarations?
    B. Do the negative declarations meet the evaluation criteria?
    C. Public Comment and Final Action
III. Administrative Requirements

I. The State's Submittal

A. What negative declarations did the State submit?

    Table 1 lists the negative declarations we are approving with the
dates that they were adopted by the NSAQMD and SMAQMD and submitted by
the California Air Resources Board (CARB).

                                    Table 1--Submitted Negative Declarations
----------------------------------------------------------------------------------------------------------------
                Local agency                                Title                     Adopted        Submitted
----------------------------------------------------------------------------------------------------------------
NSAQMD.....................................  Fiberglass Boat Manufacturing              04/25/11        05/17/11
                                              Materials.
NSAQMD.....................................  Miscellaneous Industrial Adhesives.        04/25/11        05/17/11
NSAQMD.....................................  Automobile and Light-Duty Truck            04/25/11        05/17/11
                                              Assembly Coatings.
NSAQMD.....................................  Industrial Cleaning Solvents.......        05/19/08        08/14/08
NSAQMD.....................................  Offset Lithographic Printing and           05/19/08        08/14/08
                                              Letterpress Printing.
NSAQMD.....................................  Flexible Package Printing..........        05/19/08        08/14/08
NSAQMD.....................................  Flat Wood Paneling Coatings........        05/19/08        08/14/08
NSAQMD.....................................  Paper, Film, and Foil Coatings.....        05/19/08        08/14/08
NSAQMD.....................................  Large Appliance Coatings...........        05/19/08        08/14/08
NSAQMD.....................................  Metal Furniture Coatings...........        05/19/08        08/14/08
SMAQMD.....................................  Coating Operations at Aerospace            10/27/11        01/12/12
                                              Manufacturing and Rework
                                              Operations.
----------------------------------------------------------------------------------------------------------------

    On November 17, 2011, the submittal for Northern Sierra AQMD
Negative Declarations submitted on May 17, 2011 was deemed by operation
of law to meet the completeness criteria in 40 CFR Part 51 Appendix V,
which must be met before formal EPA review.
    On February 17, 2009, the submittal for Northern Sierra AQMD
Negative Declarations submitted on August 14, 2008 was deemed by
operation of law to meet the completeness criteria in 40 CFR Part 51
Appendix V, which must be met before formal EPA review.
    On February 21, 2012, EPA determined that the Sacramento
Metropolitan AQMD Negative Declaration submitted on January 12, 2012,
met the completeness criteria in 40 CFR Part 51 Appendix V, which must
be met before formal EPA review.

B. Are there other versions of these negative declarations?

    There are no previous versions of these negative declarations.

C. What is the purpose of the submitted negative declarations?

    The negative declarations were submitted to meet the requirements
of CAA section 182(b)(2). Ozone Nonattainment areas classified at
moderate and above are required to adopt volatile organic compound
(VOC) regulations for the published Control Techniques Guidelines (CTG)
categories and for major non-CTG sources of VOC or NOX. If a
nonattainment area does not have stationary sources covered by an EPA
published CTG, then the area is required to submit a negative
declaration. The negative declarations were submitted because there are
no applicable sources within the NSAQMD and SMAQMD jurisdictions. EPA's
technical support documents (TSD) have more information about these
negative declarations.

II. EPA's Evaluation and Action

A. How is EPA evaluating the negative declarations?

    The negative declarations are submitted as SIP revisions and must
be consistent with Clean Air Act requirements for Reasonably Available
Control Technology (RACT) (see section 182(b)(2)) and SIP relaxation
(see sections 110(1) and 193.) To do so, the submittal should provide
reasonable assurance that no sources subject to the CTG requirements
currently exist or are planned for the NSAQMD and SMAQMD.

B. Do the negative declarations meet the evaluation criteria?

    We believe these negative declarations are consistent with the
relevant policy and guidance regarding RACT and SIP relaxations. The
TSDs have more information on our evaluation.

C. Public Comment and Final Action

    As authorized in section 110(k)(3) of the Act, EPA is fully
approving the submitted negative declarations as additional information
to the SIP because we believe they fulfill all relevant requirements.
We do not think anyone will object to this approval, so we are
finalizing it without proposing it in advance. However, in the Proposed
Rules section of this Federal Register, we are simultaneously proposing
approval of these negative declarations. If we receive adverse comments
by May 18, 2012, we will publish a timely withdrawal in the Federal
Register to notify the public that the direct final approval will not
take effect and we will address the comments in a subsequent final
action based on the proposal. If we do not receive timely adverse
comments, the direct final approval will be effective without further
notice on June 18, 2012.

III. Administrative Requirements

    Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve State
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely approves State law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by State law. For that reason, this 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 Clean Air Act; and
     Does not interfere with Executive Order 12898 (59 FR 7629
(Feb. 16, 1994)) because EPA lacks the discretionary authority to
address environmental justice in this rulemaking.

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

    The 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).
    Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by June 18, 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. Parties with objections to this direct final
rule are encouraged to file a comment in response to the parallel
notice of proposed rulemaking for this action published in the Proposed
Rules section of today's Federal Register, rather than file an
immediate petition for judicial review of this direct final rule, so
that EPA can withdraw this direct final rule and address the comment in
the proposed rulemaking. This action 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, Ozone, Reporting and
recordkeeping requirements, Volatile organic compounds.

    Dated: March 29, 2012.
Keith Takata,
Acting Regional Administrator, Region IX.

    Part 52, Chapter I, Title 40 of the Code of FederalRegulations 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 F--California

0
2. Section 52.222 is amended by adding paragraphs (a)(2)(ii) and (a)(9)
to read as follows:

Sec.  52.222  Negative declarations.

    (a) * * *
    (2) * * *
    (ii) Coating Operations at Aerospace Manufacturing and Rework
Operations was submitted on January 12, 2012 and adopted on October 27,
2011.
* * * * *
    (9) Northern Sierra Air Quality Management District.
    (i) Flexible Package Printing, Flat Wood Paneling Coatings, Paper,
Film, and Foil Coatings, Large Appliance Coatings, Metal Furniture
Coatings, Industrial Cleaning Solvents, and Offset Lithographic
Printing and Letterpress Printing were submitted on August 14, 2008 and
adopted on May 19, 2008.
    (ii) Fiberglass Boat Manufacturing Materials, Miscellaneous
Industrial Adhesives, and Automobile and Light-Duty Truck Assembly
Coatings were submitted on May 17, 2011 and adopted on April 25, 2011.
* * * * *
[FR Doc. 2012-9078 Filed 4-17-12; 8:45 am]
BILLING CODE 6560-50-P