[Federal Register Volume 77, Number 128 (Tuesday, July 3, 2012)]
[Proposed Rules]
[Pages 39446-39447]
[FR Doc No: 2012-15912]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 139

Draft Parachute Landing Area Standards

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Request for comment.

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SUMMARY: The Federal Aviation Administration (FAA), U.S. Department of
Transportation (DOT), invites the United States Parachute Association,
skydiving businesses, airport operators, airport consultants, industry
representatives and all other interested parties to review and comment
on the draft ``Parachute Landing Area Standards'' contained in Change
19 to the Airport Design Advisory Circular (``AC''), AC 150/5300-13.
This change establishes new standards and recommendations for parachute
landing areas on airports. This action proposes to clarify the FAA
policies and standards concerning access to federally obligated
airports for parachute landing activities. It also proposes to clarify
Grant Assurance No. 22, ``Economic Nondiscrimination,'' which is
required of a sponsor as a condition of receiving a grant under the
Airport Improvement Program (AIP), to incorporate these standards.

DATES: Comments must be received on or before August 17, 2012.

ADDRESSES: Comments must be submitted by:
     Hand Delivery/Courier: Federal Aviation Administration,
800 Independence Avenue SW., AAS-100, Room 621, Washington, DC 20590.
     Fax:<PHONE_NUMBER>.

FOR FURTHER INFORMATION CONTACT: Khalil Elias Kodsi, P.E. PMP, Airport
Engineering Division, (AAS-100), Federal Aviation Administration, 800
Independence Ave. SW., Washington, DC 20591; telephone<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: The FAA has posted Change 19 for the
Advisory Circular on the Internet at: http://www.faa.gov/airports/resources/advisory_circulars/
    Pursuant to 49 U.S.C. 47107(h), the Secretary of Transportation is
required to provide notice and comment in the Federal Register and an
opportunity for the public to comment upon proposals to modify the
assurances or add new assurances.
    The purpose of this document is twofold: (1) To provide notice of
the proposed modification of Grant Assurance No. 22 and to provide an
opportunity to comment consistent with 49 U.S.C. 47107(h), and (2) to
invite interested parties to review and comment on the draft
``Parachute Landing Area Standards'' contained in Change 19 to the
Airport Design Advisory Circular, AC 150/5300-13. The FAA interprets 49
U.S.C. 47107(a)(1), and the corollary grant assurance No. 22,
``Economic Nondiscrimination,'' to require airports obligated under AIP
grants (which includes sponsors that are holders of Airport Operating
Certificates issued under 14 CFR part 139) to comply with new PLA
Standards set forth in Change 19 to AC 150/5300-13, ``Airport Design,''
which address hazards, PLA size and location, and recommended markings.
The FAA proposes to use these standards; along with changes in its
safety assessment review process, to provide a more consistent and
objective examination of requests for parachute landing areas on
federally obligated airports. The new standards and the updated review
process will ensure that airport sponsors are able to implement new
PLAs safely and efficiently. The PLA Standards will apply at the time
airports enter into new grant agreements with the FAA subsequent to the
effective date of Change 19 to AC No. 150/5300-13, ``Airport Design.''
    The FAA proposes to modify AIP Grant Assurance No. 22, ``Economic
Nondiscrimination,'' to clarify that sponsor must comply with Parachute
Landing Area (PLA) Standards set forth in Change 19 to AC 150/5300-13,
``Airport Design,'' which address hazards, PLA size and location, and
recommended markings. These standards are designed to provide a more
consistent and objective examination of requests for parachute landing
areas on federally obligated airports. The standards will ensure that
sponsors are able to implement new PLAs safely and efficiently.
    Title 49 of the United States Code, section 47108(a), provides that
the Secretary may impose terms on the offer of Federal funds for AIP
funded airport development projects that the Secretary considers
necessary. Uniform design standards for airports can be found in FAA
advisory circulars and mandatory use is generally required on all AIP
projects. In exchange for AIP grant funds, an airport sponsor is
required by 49 U.S.C. 47107(a) to certify to the Secretary that it will
comply with a number of Federal laws, policies, and grant assurances.
Grant Assurance No. 22, ``Economic Nondiscrimination,'' requires an
airport sponsor to ``make the airport available as an airport for
public

use on reasonable terms and without unjust discrimination to all types,
kinds and classes of aeronautical activities, including commercial
aeronautical activities offering services to the public at the
airport.''
    Parachuting is an aeronautical activity. See AC-105.2D. For several
years, airport sponsors, skydiving operators and airport users have
expressed concerns to the FAA about the safety assessment process the
FAA uses to evaluate parachute operations and the siting of Parachute
Landing Areas on federally obligated airports. These concerns include
the amount of time required from airport sponsors, skydiving operators,
and the FAA to conduct safety assessments, and the resulting access
delays that can occur for skydiving operators. The PLA standards and
safety risk assessment procedures are an attempt to address these
issues. With these standards, along with changes to the safety
assessment review process, the FAA also seeks to gain greater national
coordination and consistency in its safety assessments and to ensure
that these standards are applied objectively and uniformly across the
country. Some airport sponsors have cited reasons of safety and/or
efficiency and have been generally reluctant to allow the establishment
of on-airport parachute landing areas. Airport sponsors generally do
not object to the takeoff and landing of aircraft that are used to
transport skydivers, but argue that having the skydivers land on the
airport property creates safety and/or efficiency concerns when
combined with other aeronautical users.
    Change 19 of AC 150/5300-13, ``Airport Design,'' establishes new
standards for on-airport PLAs, including size, location and recommended
markings. The FAA proposes to use these standards; along with changes
in its safety assessment review process, to provide a more consistent
and objective examination of requests for parachute landing areas on
federally obligated airports. This new standard, combined with the new
request review process, will ensure that airport sponsors are able to
implement new PLAs safely and efficiently.
    Reviewers will also have access, via the FAA listed web link above,
to the FAA William J. Hughes Technical Center Report entitled,
``Development of Criteria for Parachute Landing Areas on Airports,'' as
well as to a database report of accidents and incidents related to
parachute operations from the Aviation System Information Analysis and
Sharing (ASIAS) database.
    As required under 49 U.S.C. 47107(h), the FAA is providing notice
that it interprets 49 U.S.C. 47107(a) (1), and the corollary grant
assurance No. 22, ``Economic Nondiscrimination,'' to require airports
that accept new AIP grants (which would include sponsors that are
holders of Airport Operating Certificates issued under 14 CFR part 139)
to comply with new PLA Standards set forth in Change 19 to AC 150/5300-
13, ``Airport Design.'' The new standards address hazards, PLA size and
location, and recommended markings. In consideration of the above, the
FAA proposes to modify the current version of Grant Assurance No.22,
``Economic Nondiscrimination,'' to add new paragraph (j) to read as
follows:
    C. Sponsor Certification. The sponsor hereby assures and certifies,
with respect to this grant, that:

22. Economic Nondiscrimination

    j. It will comply with Parachute Landing Area (PLA) Standards
set forth to 150-5300 series AC ``Airport Design,'' which addresses
hazards, PLA size and location, and recommended markings.

    The PLA Standards will take effect at the time airports enter into
new grant agreements with the FAA subsequent to the effective date of
Change 19 to AC No. 150/5300-13, ``Airport Design.'' For an airport
that has an existing parachute landing area, the airport will have 60
months from the date it enters into the grant agreement to come into
compliance with the new PLA standards. If an airport is not able to
modify its existing parachute landing area to comply within this
timeframe, the airport must provide the FAA with a plan prior to the
end of the 60 months. This plan must be submitted to the local FAA
Airports District Office or Regional Airports Office (where applicable)
for approval, and must include a timetable describing how the airport
will meet the PLA Standards within a timeframe acceptable to the
Administrator. For other airports, the Standards are recommended.
    It should be noted that in Change 19, the FAA has modified
paragraph 3, ``Application,'' to reflect that the standards in the
Airport Design AC may be used by certificated airports as a means of
satisfying specific requirements in subparts C and D of 14 CFR part
139. This text was inadvertently removed from the prior version of the
Airport Design AC. The next text reads,
    The standards and recommendations contained in this AC may be used
by certificated airports to satisfy specific requirements of Federal
Aviation Regulations (FAR) part 139, ``Certification of Airports,''
subparts C (Airport Certification Manual) and D (Operations).

    Issued in Washington, DC, on June 22, 2012.
Michael J. O'Donnell,
Director, Office of Airport Safety and Standards.
[FR Doc. 2012-15912 Filed 6-29-12; 4:15 pm]
BILLING CODE 4910-13-P


[Federal Register Volume 82, Number 12 (Thursday, January 19, 2017)]
[Notices]
[Pages 6522-6525]
[FR Doc No: 2017-01235]

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OPPT-2017-0026; FRL-9958-34]

Statutory Requirements for Substantiation of Confidential
Business Information (CBI) Claims Under the Toxic Substances Control
Act (TSCA)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: In June 2016, the Frank R. Lautenberg Chemical Safety for the
21st Century Act amended the Toxic Substances Control Act (TSCA). EPA
is announcing an interpretation of TSCA section 14 concerning
confidential business information (CBI) claims for information
submitted to EPA. EPA interprets the revised TSCA section 14(c)(3) as
requiring substantiation of non-exempt CBI claims at the time the
information claimed as CBI is submitted to EPA.

FOR FURTHER INFORMATION CONTACT:
    For general information contact: Colby Lintner, Regulatory
Coordinator, Environmental Assistance Division (7408M), Office of
Pollution Prevention and Toxics, Environmental Protection Agency, 1200
Pennsylvania Ave. NW., Washington, DC 20460-0001; telephone number:
(202) 554-1404; email address<EMAIL_ADDRESS>    For technical information contact: Scott M. Sherlock, Attorney
Advisor, Environmental Assistance Division, Office of Pollution
Prevention and Toxics, Environmental Protection Agency, 1200
Pennsylvania Ave. NW., Washington, DC 20460-0001; telephone number:
(202) 564-8257; email address<EMAIL_ADDRESS>
DATES: This action is effective on March 20, 2017.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    This announcement is directed to the public in general. It may,
however, be of particular interest to you if you manufacture (defined
by statute to include import) and/or process chemicals covered by TSCA
(15 U.S.C. 2601 et seq.). This may include businesses identified by the
North American Industrial Classification System (NAICS) codes 325 and
32411. Because this action is directed to the general public and other
entities may also be interested, the Agency has not attempted to
describe all the specific entities that may be interested in this
action. If you have any questions regarding the applicability of this
action to a particular entity, consult the technical person listed
under FOR FURTHER INFORMATION CONTACT.

B. How can I get copies of this document and other related information?

    1. Docket. EPA has established a docket for this action under
docket identification (ID) number EPA-HQ-OPPT-2017-0026. All documents
in the docket are listed in the docket index available at http://www.regulations.gov. 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 electronically at http://www.regulations.gov, or, if only available in hard copy, at the OPPT
Docket. The OPPT Docket is located in the EPA Docket Center (EPA/DC) at
Rm. 3334, EPA West Bldg., 1301 Constitution Ave. NW., Washington, DC.
The EPA/DC Public Reading Room hours of operation are 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding legal holidays. The telephone
number of the EPA/DC Public Reading Room is<PHONE_NUMBER>, and the
telephone number for the OPPT Docket is<PHONE_NUMBER>. Docket visitors
are required to show photographic identification, pass through a metal
detector, and sign the EPA visitor log. All visitor bags are processed
through an X-ray machine and subject to search. Visitors will be
provided an EPA/DC badge that must be visible at all times in the
building and returned upon departure.
    2. Other related information. For information about EPA's programs
to evaluate new and existing chemicals and their potential risks and
the amended TSCA, go to https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/frank-r-lautenberg-chemical-safety-21st-century-act.

II. What action is the Agency taking?

    The amended TSCA provides new requirements relating to the
assertion, substantiation and review of CBI claims. EPA is interpreting
the revised TSCA section 14(c)(3) as requiring substantiation of all
CBI claims at the time the information claimed as CBI is submitted to
EPA, except for claims for information subject to TSCA section
14(c)(2).
    This action facilitates the Agency's implementation of TSCA section
14(g) to review all CBI claims for chemical identity, with limited
exceptions, as well as to review a representative sample of at least
25% of other non-exempt claims.

III. What is the Agency's authority for taking this action?

    EPA has determined that TSCA section 14(c)(3), 15 U.S.C.
2613(c)(3), requires an affected business to substantiate all TSCA CBI
claims, except for information subject to TSCA section 14(c)(2), at the
time the affected business submits the claimed information to EPA.
    TSCA section 14(c)(1)(a) requires an affected business to assert a
claim for protection from disclosure concurrent with submission of the
information in accordance with existing or future rules. TSCA section
14(c)(3) in turn requires an affected business submitting a claim to
protect information from disclosure to substantiate the claim, also in
accordance with existing or future rules. The language of TSCA section
14(c)(3) is as follows:

    ``(3) Substantiation requirements. Except as provided in
paragraph (2), a person asserting a claim to protect information
from disclosure under this section shall substantiate the claim, in
accordance with such rules as the Administrator has promulgated or
may promulgate pursuant to this section.''

    EPA interprets TSCA section 14(c)(3) to require substantiation for
all TSCA CBI claims, except for information

within TSCA section 14(c)(2). That is the clear import of the language,
``a person asserting a claim to protect information from disclosure
under this section shall substantiate the claim . . .'' While the final
clause requires that submissions be in accordance with EPA rules, EPA
interprets this provision as addressing the form and manner of a
submission, not as making the substantiation requirement conditional
upon a future EPA rulemaking. In the future, EPA may promulgate
regulations governing the form and manner of substantiating CBI claims
for those submissions addressed by this action. Nonetheless, EPA
considers the statutory substantiation requirement to be in place as of
the effective date of this action.
    EPA's interpretation is supported by legislative history for the
recent amendments to TSCA. Both the Senate and House intended to
require substantiation of CBI claims. See S. Rpt. 114-67 (observing, on
page 5, that ``section 14 [of pre-amendment TSCA] and EPA's
implementation of it has been criticized for failing to require . . . .
up-front substantiation of confidentiality claims,'' and, on page 22,
stating that, under the Senate bill, ``all new claims for protection of
information not presumed to be protected from disclosure must be
substantiated by the claimant''); H. Rpt. 114-176 at 29 (a
confidentiality claim must ``include . . . . a justification for each
claim of confidentiality''); Senate Environment and Public Works
Committee summary: ``Reforming the Toxic Substances Control Act'' at 3
(http://www.epw.senate.gov/public/_cache/files/aa2ac4d1-15bb-4e71-9588-909d49bdcff2/tsca-reform-marketing-packet-5.19-final.pdf). (``The
legislation promotes additional transparency by requiring up-front
substantiation of claims to protect confidential commercial
information. . . .'') EPA's interpretation also is supported by TSCA
section 14(i)(2), which provides that, ``nothing in this chapter''
prevents EPA from requiring substantiation before the effective date of
rules that may be promulgated after June 22, 2016, the date on which
the amendments to TSCA were enacted.
    It might be maintained that TSCA section 14(c)(3) does not impose a
substantiation requirement, but merely authorizes EPA to promulgate
rules requiring substantiation. Alternatively, it might be maintained
that the section does impose a substantiation requirement, but that the
requirement must be effectuated through EPA rulemaking.
    The first reading does not effectuate the legislative intent to
require substantiation. In addition, the provision is not worded as a
mere grant of authority. Numerous other provisions of TSCA--both of the
pre-amended statute and of the Lautenberg amendments--demonstrate that
Congress used more straightforward language when it intended simply to
grant EPA rulemaking or other authority (e.g., TSCA section 14(f)(1)
(``The Administrator may require any person . . . to reassert and
substantiate or re-substantiate'' an existing claim under certain
circumstances); TSCA section 4(a)(2) (``The Administrator may, by rule,
order, or consent agreement . . . . require the development of new
information''). Finally, TSCA section 14(c)(1) already authorizes EPA
to promulgate rules governing the assertion of CBI claims. This
paragraph provides authority for EPA to promulgate rules requiring
substantiation, and EPA in fact promulgated a number of rules requiring
substantiation under similarly worded authority in pre-amendment TSCA
section 14(c)(1). See, e.g., 40 CFR 711.30(b)(1), requiring up-front
substantiation for chemical identity claims for Chemical Data Reporting
under part 711. To interpret TSCA section 14(c)(3) as merely providing
authority to require substantiation, where that authority already
exists in TSCA section 14(c)(1), would arguably give TSCA section
14(c)(3) no effect at all.
    The second reading amounts to a revision of the legislative text.
TSCA section 14(c)(3) does not require EPA to undertake rulemaking; it
merely acknowledges that EPA ``may'' do so. Unless this ``may'' were
read as ``shall'', EPA would be under no obligation to promulgate the
rules required to carry out the objective of requiring substantiation.
Here again, numerous other provisions of TSCA demonstrate that Congress
used clear language--and included deadlines--when it intended to
require EPA to promulgate regulations (e.g., TSCA section
6(b)(1)(A)(``Not later than 1 year after June 22, 2016, the
Administrator shall establish, by rule, a risk-based screening process.
. . .'').
    Having determined that TSCA section 14(c)(3) requires
substantiation of all non-exempt TSCA CBI claims, EPA believes the
provision is best interpreted as requiring substantiation concurrent
with the submission. This is the natural reading of the requirement
that ``a person asserting a claim . . . . shall substantiate the
claim.'' By analogy, TSCA section 14(c)(5)--another requirement newly
added by the Lautenberg amendments--provides that a claimant ``shall
certify that the statement required to assert a [confidentiality] claim
. . . . and any information required to substantiate a claim . . . .
are true and correct.'' While this provision does not explicitly state
that the certification must accompany the submission, it is reasonable
to conclude that Congress intended that result. Moreover, a requirement
to substantiate CBI claims at some unspecified time would not create
any meaningful self-executing requirement, because there would be no
point in time at which an affected business could be found not to have
complied.
    Reading the law as requiring substantiation concurrent with the CBI
claim also comports with the legislative history. In addition to the
history cited earlier in this document, the Senate Report, on p. 5,
noted stakeholder concerns that, under pre-amendment TSCA, the lack of
a requirement for up-front substantiation resulted in ``an over-
abundance of CBI claims, some of which may not be legitimate.''
Interpreting TSCA section 14(c)(3) as requiring substantiation of a CBI
claim concurrent with the claim's submission best effectuates the
expressed intent of Congress.
    This interpretation is consistent with the requirement in TSCA
section 14(g)(1) that EPA review most confidentiality claims for
chemical identity and at least 25% of claims for other types of non-
exempt information within 90 days after the receipt of the claim. An
approach under which substantiations were submitted at some point after
assertion of CBI claims would significantly reduce (and has already
significantly reduced) the short period for such CBI reviews. To date,
for each review, the Agency must contact each affected business,
request the submission of a substantiation, and allow a period of time
for the affected business to submit the substantiation. Since timely
substantiation provides critical information for completing CBI
reviews, it is reasonable to conclude that Congress intended for claims
to be substantiated at the time the CBI claim is asserted.
    When the amendments to TSCA became law on June 22, 2016, EPA
published initial Questions and Answers (Q and A's) in an effort to
respond to the inquiries and requests concerning EPA's views on the new
law. EPA needed to issue guidance to the public as quickly as possible
on a broad range of matters under the amendments, since the amendments
became effective

upon signature. In the Q and A's on TSCA section 14, EPA stated that
the Agency was using existing authorities to obtain CBI substantiations
and that the Agency may revise CBI substantiation requirements for
specific types of information submissions by subsequent rulemaking.
Since the time the Q and A's were developed, EPA has heard the views of
a number of stakeholders and has had the opportunity to more fully
review the statute and legislative history and to evaluate the
operational considerations associated with the interpretation of TSCA
section 14(c)(3).
    Operationally, given the large volume of CBI claims, including
those that the Agency has already received and those that the Agency
expects to receive in the future, it is administratively efficient to
interpret the statute as requiring up-front substantiation, which
necessarily saves the Agency the time and resources that would
otherwise be spent in attempting to contact the affected business. Up-
front substantiation will also significantly enhance EPA's ability to
meet the review deadlines in TSCA section 14(g). Further, requiring
substantiation concurrent with submission will mitigate any need for an
affected business to request an extension to substantiate a CBI claim.
Additionally, requiring the affected business to provide justification
at the time of submission may help limit unwarranted claims of CBI.
Based on this further review, for the reasons stated above, EPA has
concluded that the provision is best read as creating a requirement to
substantiate non-exempt TSCA CBI claims concurrent with their
submission.

IV. Implementation

    Existing EPA confidentiality rules at 40 CFR part 2, section
2.204(e), provide substantiation questions that the Agency may
specifically request answers to, pursuant to the procedures in those
regulations. While those specific questions are not dictated by the
self-executing substantiation requirement in TSCA section 14(c)(3), EPA
suggests that companies look to those questions for guidance as to how
to fulfill the TSCA section 14(c)(3) substantiation requirement for
information that is not currently subject to an existing regulatory up-
front substantiation requirement. The answers to those questions
typically form the basis of EPA final confidentiality determinations,
and substantiations that do not address those questions might not
provide sufficient information to uphold a determination, pursuant to
TSCA section 14(g)(1), that information claimed as CBI is eligible for
confidential protection. For information that is currently subject to a
regulatory up-front substantiation requirement (for example, chemical
identity CBI claims in the Chemical Data Reporting rule, under 40 CFR
711.30), the terms of that requirement, including the substantiation
questions required, will continue to govern the substantiation.
    EPA has revised its Web pages on CBI to assist compliance with this
interpretation of TSCA section 14. The Web pages list the
substantiation questions from 40 CFR 2.204(e) and provide information
on substantiation exemptions and on how the substantiations should be
directed to the Agency.
    Because EPA is providing this interpretation of TSCA section
14(c)(3) for the first time in this document, the Agency is setting
different procedures for those who have submitted or will submit
information claimed as CBI under TSCA before the effective date of this
action, i.e., March 20, 2017, and those who submit information claimed
as CBI afterwards.

A. TSCA Submissions Filed on or After March 20, 2017

    Those submissions containing information claimed as CBI filed on or
after the effective-date of this action (i.e., March 20, 2017) must
provide a substantiation for all information claimed as confidential,
other than information exempt from substantiation pursuant to TSCA
section 14(c)(2). Any non-exempt CBI claim that is submitted without a
substantiation will be considered deficient, and EPA will send a notice
of deficiency to the affected business. The notice will inform the
affected business that it must submit its substantiation within 30
calendar days in order to remedy its deficient CBI claim. The notice
letter will also inform the affected business that if a timely
substantiation has not been received by EPA within 30 days of receipt
of the letter, then any CBI claims not substantiated will be considered
withdrawn, and the information may be made public with no further
notice to the affected business.

B. TSCA Submissions Filed Between June 22, 2016 and March 20, 2017

    Those submissions containing information claimed as CBI filed
between June 22, 2016 and March 20, 2017, must provide a substantiation
for all information claimed as confidential, other than information
exempt from substantiation pursuant to TSCA section 14(c)(2). The
Agency is giving submitters until September 18, 2017 to provide
substantiations and direct them to the Agency. If a substantiation has
already been provided to EPA with the submission or in response to a
substantiation request, no additional substantiation need be filed for
the same information. Be aware, however, that if some non-exempt
information claimed as confidential in a particular submission has
already been substantiated and some has not, the unsubstantiated
information claimed as CBI in the submission must still be
substantiated by September 18, 2017. The CBI claims, and the
substantiations, may then be reviewed consistent with the provisions of
TSCA, its implementing regulations and in accordance with the Agency
procedures set forth in 40 CFR part 2. Once September 18, 2017 has
passed, if no substantiation has been received for a claim, then EPA
will provide the affected business 30 days' notice and a final
opportunity to substantiate. The notice will inform the affected
business that any CBI claims not substantiated at the end of the 30
days will be considered withdrawn, and the information may be made
public with no further notice to the affected business.
    EPA's electronic reporting systems for TSCA submissions have been
modified to require substantiations for non-exempt CBI claims in
submissions filed on or after March 20, 2017. Any new paper TSCA
submissions that are directed to the Agency after that date must
include substantiations for all non-exempt CBI claims at the time of
submission.
    For electronic submissions made using EPA's Central Data Exchange
(CDX) during the period from June 22, 2016 to March 20, 2017 that were
not substantiated, affected businesses must provide substantiation for
CBI claims using the amendment processes for the particular submission
type. Information on electronic reporting, including how to make
amendments, can be found at https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/electronic-reporting-requirements-certain-information.
    For any paper TSCA submissions that were submitted to the Agency
during the period from June 22, 2016 to March 20, 2017, the affected
business must submit substantiations for any non-exempt CBI claims that
have not yet been substantiated. Submit these substantiations to: TSCA
Confidential Business Information Center (7407M), WJC East; Room 6428;
Attn: TSCA CBI Substantiations. U.S. Environmental Protection Agency,
1200 Pennsylvania Avenue NW., Washington, DC 20460-0001.

    Courier Deliveries should be directed to:
    U.S. EPA, Office of Pollution Prevention and Toxics, Confidential
Business Information Center (CBIC), Attn: TSCA CBI Substantiations.
1201 Constitution Avenue NW., WJC East; Room 6428 Washington, DC 20004-
3302,<PHONE_NUMBER>.
    More information on how to substantiate CBI claims for paper
submissions can be found at https://www.epa.gov/tsca-cbi/.

    Authority:  15 U.S.C. 2601 et seq.

    Dated: January 13, 2017.
James J. Jones,
Assistant Administrator, Office of Chemical Safety and Pollution
Prevention.
[FR Doc. 2017-01235 Filed 1-18-17; 8:45 am]
 BILLING CODE 6560-50-P


[Federal Register Volume 76, Number 60 (Tuesday, March 29, 2011)]
[Proposed Rules]
[Pages 17368-17373]
[FR Doc No: 2011-7325]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2010-0404; FRL-9287-4]

Approval and Promulgation of Air Quality Implementation Plans;
Louisiana; Determination of Termination of Section 185 Fees

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA is proposing to determine that the State of Louisiana
is no longer required to submit a section 185 fee program State
Implementation Plan (SIP) revision for the Baton Rouge ozone
nonattainment area to satisfy anti-backsliding requirements for the 1-
hour ozone standard. This proposed determination (``Termination
Determination'') is based on complete, quality-assured monitoring data
showing attainment of the 1-hour ozone National Ambient Air Quality
Standard (NAAQS), which is due to permanent and enforceable emission
reductions implemented in the area.

DATES: Written comments must be received on or before April 28, 2011.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2010-0404, by one of the following methods:
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FOR FURTHER INFORMATION CONTACT: Ms. Sandra Rennie, Air Planning
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fax<PHONE_NUMBER>, e-mail address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA.
    Organization of this document. The following outline is provided to
aid in locating information in this preamble.

I. What action is EPA taking?
II. Background
III. What is the legal rationale for this action?
IV. What is the effect of this action?
V. What is EPA's analysis?
    a. Attainment of the 1-Hour Ozone Standard
    b. Permanent and Enforceable Emission Reductions
VI. Proposed Action
VII. Statutory and Executive Order Reviews

I. What action is EPA taking?

    EPA is proposing to determine that Louisiana is no longer required
to submit a Clean Air Act section 185 fee program SIP revision for the
Baton Rouge 1-hour ozone nonattainment area to satisfy anti-backsliding
requirements associated with the transition from the 1-hour ozone
standard to the 1997 8-hour ozone standard. This proposed Termination
Determination is based on EPA's belief that the area is attaining the
1-hour ozone standard due to permanent and enforceable emission
reductions implemented in the area. If finalized, the effect of EPA's
determination would be to terminate the area's obligation to submit a
section 185 fee program SIP revision for the 1-hour ozone standard.

II. Background

    In 2003, EPA determined that the Baton Rouge 1-hour ozone
nonattainment area had failed to meet its 1-hour ozone serious area
nonattainment date, and consequently the area was reclassified as a
matter of law to severe nonattainment of the 1-hour ozone standard
effective June 23, 2003. 68 FR 20077 (April 24, 2003). The
reclassification of the area as severe required the State to adopt a
SIP revision creating a penalty fee program under CAA section 185 that
would apply if the area failed to meet the November 15, 2005 attainment
date that applied to severe 1-hour ozone areas. But, by that date, EPA
had revoked the 1-hour standard and designated the Baton Rouge area for
the new 1997 8-hour standard as marginal nonattainment.
    Section 185 1-Hour Ozone Anti-backsliding Requirements:
    Although EPA revoked the 1-hour standard on June 15, 2004, during
the transition from the 1-hour ozone to the 8-hour ozone standard, EPA
required 1-hour nonattainment areas to remain subject to certain
requirements pertaining to the area's previous 1-hour classification.
    The section 185 fee program requirement applied to any ozone
nonattainment area classified as Severe or Extreme under the NAAQS,
including any area that was classified Severe or Extreme under the 1-
hour ozone NAAQS as of the effective date of the area's 8-hour
designation. Initially, in our rules to address the transition from the
1-hour to the 8-hour ozone standard, we did not include the 185 fee
penalty requirement as one of the measures necessary to meet anti-
backsliding requirements.\1\ However, on December 23, 2006, the United
States Court of Appeals for the District of Columbia Circuit issued an
opinion determining that EPA improperly removed from its anti-
backsliding requirements the application of the section 185 fee
provision for Severe and Extreme nonattainment areas that failed to
attain the 1-hour ozone standard by their attainment date. South Coast
Air Quality Management District v. EPA, 472 F.3d 882 (DC Cir. 2006). In
light of the Court's decision, on January 5, 2010 EPA issued guidance
on the application of the 185 1-hour anti-backsliding requirement.
EPA's guidance addressed, among other matters, alternative methods of
satisfying the section 185 1-hour anti-backsliding requirement, and the
circumstances under which EPA would determine that the obligation was
terminated.
---------------------------------------------------------------------------

    \1\ Final Rule to Implement the 8-Hour Ozone National Ambient
Air Quality Standard--Phase 1, 69 FR 23951 (April 30, 2004).
---------------------------------------------------------------------------

    After the 1-hour standard was revoked, and in accordance with anti-
backsliding regulations that remained unchallenged, EPA no longer
reclassified areas under section 181(b) for the 1-hour standard or
redesignated 1-hour nonattainment areas to attainment for that standard
69 FR 23951 (April 30, 2004). EPA continued, however to make
determinations of attainment for the 1-hour standard under EPA's Clean
Data Policy. On February 10, 2010 (75 FR 6570), EPA determined,
pursuant to the Clean Data Policy, that the Baton Rouge area had
attained the 1-hour ozone standard.\2\ This determination suspended
certain attainment-related severe area 1-hour ozone planning
requirements for Baton Rouge, but did not affect the area's anti-
backsliding obligation under the 1-hour ozone section 185 fee
requirement.
---------------------------------------------------------------------------

    \2\ May 10, 1995, EPA memorandum from John S. Seitz, Director,
Office of Air Quality Planning and Standards, entitled ``Reasonable
Further Progress, Attainment Demonstration, and Related Requirements
for Ozone Nonattainment Areas Meeting the Ozone Ambient Air Quality
Standard.''
---------------------------------------------------------------------------

III. What is the legal rationale for this action? \3\

    As a result of the court decision in South Coast Air Quality
Management District v. EPA, 472 F.3d 882 (DC Cir. 2006), States with
areas classified as Severe or Extreme nonattainment for the 1-hour
ozone standard at the time of the area's initial nonattainment
designation for the 1997 8-hour standard are no longer categorically
exempt from anti-backsliding requirements under section 185. As set
forth in EPA's January 5, 2010 guidance \4\, EPA believes that States
can meet this obligation through a SIP revision containing either the
fee program prescribed in section 185, or an equivalent alternative
program, as further explained below. EPA believes that an alternative
program may be acceptable if it is consistent with the principles of
section 172(e) of the CAA, which allows EPA through rulemaking to
accept alternative programs that are ``not less stringent'' where EPA
has

revised the NAAQS to make it less stringent.
---------------------------------------------------------------------------

    \3\ Stephen D. Page, Director, Office of Air Quality Planning
and Standards. Guidance on Developing Fee Programs Required by Clean
Air Act Section 185 for the 1-Hour Ozone NAAQS. January 5, 2010.
    \4\ Ibid.
---------------------------------------------------------------------------

    Section 172(e) is an anti-backsliding provision of the CAA that
requires EPA to develop regulations to ensure that controls are ``not
less stringent'' than those that applied prior to relaxing a standard
where EPA has revised a NAAQS to make it less stringent. In the Phase 1
ozone implementation rule for the 1997 ozone NAAQS published on April
30, 2004 (69 FR 23951), EPA determined that although section 172(e)
does not directly apply where EPA has strengthened the NAAQS, as it did
in 1997, it was reasonable to apply the same principle for the
transition from the 1-hour NAAQS to the 1997 8-hour NAAQS. As part of
applying the principle in section 172(e) for purposes of the transition
from the 1-hour standard to the 1997 8-hour standard, EPA can either
require States to retain programs that applied for purposes of the 1-
hour standard, or alternatively can allow States flexibility to adopt
alternative programs, but only if such alternatives are determined
through rulemaking to be ``not less stringent'' than the mandated
program.
    EPA is electing to consider alternative programs to satisfy the
section 185 fee program SIP revision requirement. States choosing to
adopt an alternative program to the section 185 fee program must
demonstrate that the alternative program is no less stringent than the
otherwise applicable section 185 fee program and EPA must approve such
demonstration after notice and comment rulemaking.
    As set forth in EPA's January 5, 2010 guidance, EPA believes that
for an area that we determine is attaining either the 1-hour ozone or
1997 8-hour ozone NAAQS, based on permanent and enforceable emissions
reductions, the area would no longer be obligated to submit a fee
program SIP revision to satisfy the anti-backsliding requirements
associated with the transition from the 1-hour ozone standard to the
1997 8-hour ozone standard. In such cases, an area's existing SIP could
be considered an adequate alternative program. Our reasoning follows
from the fact that an area's existing SIP measures, in conjunction with
other enforceable Federal measures, are adequate for the area to
achieve attainment, which is the purpose of the section 185 program.
The section 185 fee program is an element of an area's attainment
demonstration, and its object is to bring about attainment after a
failure of an area to attain by its attainment date. Thus, areas that
have attained the 1-hour ozone standard, the standard for which the fee
program was originally required, as a result of permanent and
enforceable emission reductions, would have a SIP that is not less
stringent than the SIP required under section 185. Therefore, EPA
concludes that the obligation to collect fees terminates once EPA
determines that the area has attained the 1-hour ozone standard based
on permanent and enforceable emissions reductions.
    In addition, EPA's guidance states that once an area attains the
1997 8-hour ozone standard, which replaced the now revoked 1-hour ozone
standard, the purpose of retaining the section 185 fee program as an
anti-backsliding measure would also be fulfilled as the area would have
attained the 8-hour ozone standard for which the fee program was
retained as a transition measure. We believe that it would unfairly
penalize sources in these areas to require that fees be paid after an
area has attained the 8-hour ozone standard due to permanent and
enforceable emission reductions because the fees were imposed due to a
failure to meet the applicable attainment deadline for the revoked 1-
hour ozone standard, not any failure to achieve the now applicable 8-
hour ozone standard for which the fee program was retained as a
transition matter by its attainment date.\5\
---------------------------------------------------------------------------

    \5\ EPA notes that it has also finalized a determination that
the Baton Rouge area has attained the 8-hour ozone standard. (75 FR
54778, September 9, 2010). A final determination of 8-hour
attainment based on permanent and enforceable emissions reductions
could provide another ground for termination of the section 185 1-
hour anti-backsliding requirements, but we have not yet made such a
determination and thus do not rely on it here.
---------------------------------------------------------------------------

    There is also an additional, independent basis for EPA's approach
to determining that the anti-backsliding requirements associated with
section 185 have been satisfied. Although section 185 provides that
fees are to continue until the area is redesignated for ozone, EPA no
longer promulgates redesignations for the 1-hour ozone standard because
that standard has been revoked. Therefore, relief from the 1-hour
section 185 fee program requirement under the terms of the statute is
an impossibility, since the conditions the statute envisioned for
relieving an area of its fee program obligation no longer can exist.
There is thus a gap in the statute which must be filled by EPA. We
believe that under these circumstances we must exercise our discretion
under Chevron USA, Inc. v. Natural Resources Defense Council, 467 U.S.
837 (1984), to fill this gap, so as to carry out Congressional intent
in the unique context of anti-backsliding requirements for a revoked
standard. We believe that it is reasonable for the fee program
obligation that applies for purposes of anti-backsliding to cease upon
a determination, based on notice-and-comment rulemaking, that an area
has attained the 1-hour ozone standard due to permanent and enforceable
measures. This determination centers on the core criteria for
redesignations under CAA section 107(d)(3). We believe these criteria
provide reasonable assurance that the purpose of the 1-hour anti-
backsliding fee program obligation has been fulfilled in the context of
a regulatory regime where the area remains subject to other applicable
1-hour anti-backsliding and 8-hour measures. Under these circumstances,
retention of the fee program under the anti-backsliding rule is no
longer necessary for the purpose of achieving attainment of the 8-hour
standard. See EPA's January 5, 2010 guidance. (Footnote 3).

IV. What is the effect of this action?

    If this proposed determination to terminate the section 185 fee
anti-backsliding requirement for the 1-hour ozone standard is
finalized, the requirement for the State of Louisiana to submit a 185
penalty fee program SIP revision, which would require major stationary
sources under the Baton Rouge 1-hour severe nonattainment
classification to pay fees as a penalty for a failure to attain the 1-
hour ozone standard by the area's 1-hour ozone attainment date, would
be removed. A final approval of the Termination Determination for the
1-hour standard section 185 measures will not be rescinded based on
subsequent nonattainment for the 1-hour ozone standard. After EPA has
determined that an area has attained the 1-hour standard due to
permanent and enforceable emission reductions, EPA believes that it
would be unduly punitive, confusing, and potentially destabilizing to
re-impose the years-old penalty requirements if at some point in the
future the area lapses back into 1-hour nonanttainment. Moreover, EPA
believes that under current circumstances, it would not be in keeping
with the intent of Congress. First, we note that had the area attained
the 1-hour ozone standard prior to its attainment date, no penalties at
all would have been imposed even if the area subsequently lapsed into
nonattainment. Second, the statute provides that penalties for failure
to attain by an area's attainment date would be terminated by
redesigntion of the area. Now that the 1-hour ozone standard has been
revoked and EPA is no longer promulgating redesignations for that
standard, relief from the 1-hour section 185 fee program requirements

under the terms of the statute is an impossibility--the mechanism the
statute envisioned for relief no longer exists. As EPA explains in its
January 5 guidance, we have reasonably concluded in these circumstances
that a determination of attainment due to permanent and enforceable
emissions reductions, along with the area's existing SIP and its
continuing obligations to meet ever more stringent ozone standards, are
a reasonable alternative means for terminating these unique
antibacksliding penalty provisions. EPA believes that, given the gap in
the statute, and the intent of Congress as expressed in quite different
regulatory circumstances, it would be counterproductive and in conflict
with that intent for EPA's determination to merely suspend rather than
permanently terminate the 1-hour antibacksliding penalty fees.
Requiring areas to remain subject to the threat of reviving stale
penalty fees for an old revoked standard, when these areas and the
sources subject to the penalties must now muster their resources to
focus on meeting newer more stringent standards, would be at odds with
the purposes of the act and in conflict with the principle that penalty
provisions should be narrowly construed. This is all more the case when
the area is subject to a host of ongoing obligations for the 1997 8-
hour ozone standard as well as the future anticipated new 8-hour ozone
standard,\6\ and when it has already shown great improvement in meeting
the 1-hour and 1997 8-hour ozone standards.
---------------------------------------------------------------------------

    \6\ EPA anticipates announcing the reconsidered 8-hour ozone
standard in July 2011.
---------------------------------------------------------------------------

V. What is EPA's analysis?

    EPA's proposed Termination Determination is based upon EPA's belief
that the area is attaining the 1-hour ozone standard due to permanent
and enforceable emission reductions implemented in the area. EPA has
issued guidance expressing its views as to potential rationales for
terminating section 185 obligations for 1-hour ozone in its January 5,
2010 guidance. This notice formally sets forth EPA's legal
interpretation concerning the basis for terminating those obligations.

a. Attainment of the 1-Hour Ozone Standard

    As noted above, EPA recently determined that the Baton Rouge 1-hour
ozone nonattainment area attained the 1-hour ozone NAAQS. 75 FR 6570
(February 10, 2010). This determination was based on three years of
complete, quality-assured and certified ambient air monitoring data
that showed monitored attainment of the 1-hour ozone standard for the
2006-2009 monitoring period. EPA is proposing to determine that the
area continues in attainment, based on complete, quality-assured data
for 2010 and preliminary data available to date for the 2011 ozone
season.
    In addition, on September 9, 2010, EPA determined that the Baton
Rouge 1997 8-hour ozone nonattainment area has also attained the 1997
8-hour ozone NAAQS. (75 FR 54778) This proposed determination is based
on four years of complete, quality-assured and certified ambient air
monitoring data that show the area monitoring attainment of the 1997 8-
hour ozone standard for the 2006-2008, 2007-2009, and 2008-2010
monitoring periods. Preliminary data available to date for the 2011
ozone season are consistent with continued attainment. Table 1 shows
the fourth high 8-hour ozone average concentrations and design values
for monitors in the Baton Rouge area for the 2006-2010 monitoring
period.\7\
---------------------------------------------------------------------------

    \7\ As noted above, a final determination of attainment for the
8-hour standard that is due to permanent and enforceable emissions
reductions would provide an additional basis for a Termination
Determination for Baton Rouge, but EPA has not yet made such a
determination and therefore does not rely on that ground here.

                     Table 1--Fourth Highest 8-Hour Ozone Average Concentrations and Design Values (ppm) in the Baton Rouge Area \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                       4th Highest daily max                         Design values three year averages
                      Site                       -------------------------------------------------------------------------------------------------------
                                                      2006         2007         2008         2009         2010      2006-2008    2007-2009    2008-2010
--------------------------------------------------------------------------------------------------------------------------------------------------------
Plaquemine (22-047-0009)........................        0.083        0.079        0.076        0.071        0.074        0.079        0.075        0.073
Carville (22-047-0012)..........................        0.085        0.086        0.073        0.076        0.072        0.081        0.078        0.073
Dutchtown (22-005-0004).........................        0.087        0.088        0.074        0.074        0.078        0.083        0.078        0.075
Baker (22-033-1001).............................        0.091        0.077        0.071        0.071        0.075        0.079        0.073        0.072
LSU (22-033-0003)...............................        0.085        0.085        0.072        0.084        0.080        0.080        0.080        0.078
Grosse Tete (22-047-0007).......................        0.086        0.084        0.071        0.070        0.074        0.080        0.075        0.071
Port Allen (22-121-0001)........................        0.087        0.076        0.072        0.072        0.071        0.078        0.073        0.071
Pride (22-033-0013).............................        0.082        0.077        0.074        0.072        0.071        0.077        0.074        0.072
French Settlement (22-063-0002).................        0.079        0.084        0.075        0.075        0.076        0.079        0.078        0.075
Capitol (22-033-0009)...........................        0.084        0.074        0.067        0.076        0.076        0.075        0.072        0.073
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Unlike for the 1-hour ozone standard, design value calculations for the 1997 8-hour ozone standard are based on a rolling three-year average of the
  annual 4th highest values (40 CFR Part 50, Appendix I).

b. Permanent and Enforceable Emission Reductions

    EPA believes that the State has demonstrated that the observed air
quality improvements with respect to the 1-hour ozone standard are due
to permanent and enforceable emission reductions through the
implementation of emission controls contained in the SIP and in Federal
control measures.
    Subsequent to the 1990 CAA amendments, Louisiana complied with the
planning requirements of the CAA for a serious 1-hour ozone
nonattainment area (67 FR 61786, October 2, 2002).\8\ But because the
area failed to attain that standard by the attainment date for a
serious 1-hour ozone nonattainment area, in anticipation of being
reclassified to

severe, and in response to EPA's Clean Air Interstate Rule (now vacated
and remanded), additional NOX emission reductions were
achieved through the implementation of NOX control measures
for stationary sources which were adopted by the State effective on
February 20, 2002, and approved by EPA on September 27, 2002 (67 FR
60877). These rules were implemented between February 20, 2002, and May
1, 2005. The Baton Rouge area was reclassified as severe for the 1-hour
ozone standard on April 24, 2003. (68 FR 20077)
---------------------------------------------------------------------------

    \8\ A litigant challenged EPA's approval of the serious area
contingency measures, but the obligation related to these measures
was later suspended by EPA's determination that the area has
attained the 1-hour standard (75 FR 6570, February 10, 2010).
---------------------------------------------------------------------------

    The rules established emission factors (standards) for
NOX sources within the Baton Rouge nonattainment area. These
revisions achieved approximately 40 TPD of additional NOX
reductions in the Baton Rouge nonattainment area. The specific
standards are listed below.

------------------------------------------------------------------------
     NOX reduction measures 2002-2008               NOX standard
------------------------------------------------------------------------
Electric Power Generating System Boilers:
    Coal-fired > 40 to < 80 MMBtu/hr......  0.50 lb/MMBtu.
    Coal-fired > 80 MMBtu/hr..............  0.21 lb/MMBtu.
    No. 6 fuel oil-fired > 40 to < 80       0.30 lb/MMBtu.
     MMBtu/hr.
    No. 6 fuel oil-fired > 80 MMBtu/hr....  0.18 lb/MMBtu.
    All others (gaseous or liquid) > 40 to  0.20 lb/MMBtu.
     < 80 MMBtu/hr.
    All others (gaseous or liquid) > 80     0.10 lb/MMBtu.
     MMBtu/hr.
Industrial Boilers > 40 to < 80 MMBtu/hr..  0.20 lb/MMBtu.
Industrial Boilers > 80 MMBtu/hr..........  0.10 lb/MMBtu.
Process Heater/Furnaces:
    Ammonia reformers > 40 to < 80 MMBtu/   0.30 lb/MMBtu.
     hr.
    Ammonia reformers > 80 MMBtu/hr.......  0.23 lb/MMBtu.
    All others > 40 to < 80 MMBtu/hr......  0.18 lb/MMBtu.
    All others > 80 MMBtu/hr..............  0.08 lb/MMBtu.
Stationary Gas Turbines:
    Peaking Service, Fuel Oil-fired > 5 to  0.37 lb/MMBtu.
     < 10 MW.
    Peaking Service, Fuel Oil-fired > 10    0.30 lb/MMBtu.
     MW.
    Peaking Service, Gas-fired > 5 to < 10  0.27 lb/MMBtu.
     MW.
    Peaking Service, Gas-fired > 10 MW....  0.20 lb/MMBtu.
    All Others > 5 to < 10 MW.............  0.24 lb/MMBtu.
    All Others > 10 MW....................  0.16 lb/MMBtu.
Stationary Internal Combustion Engines:
    Lean-burn engines > 150 to < 320 Hp...  10 g/Hp-hr.
    Lean-burn engines > 320 Hp............  4 g/Hp-hr.
    Rich-burn engines > 150 to < 300 Hp...  2 g/Hp-hr.
    Rich-burn engines > 300 Hp............  2 g/Hp-hr.
------------------------------------------------------------------------

In addition, Louisiana adopted and implemented emission control rules
requiring existing sources of VOC to meet, at minimum, RACT. These
requirements apply to sources in categories covered by Control
Technology Guidelines (CTGs) and other major non-CTG sources. These
rules were adopted and implemented prior to 2002. (62 FR 63658,
February 2, 1998; 63 FR 47429, November 8, 1998) The Baton Rouge
nonattainment area control strategy is primarily NOX-driven,
therefore no major VOC rules have been adopted other than those
required to meet updated CTGs as required by the Act.
    Finally, implementation of the phased-in Federal Tier II light-duty
vehicle rule was complete in 2006, with 100 percent of the vehicles
manufactured for that model year meeting the more stringent standard.
This would have contributed some small additional benefit to the Baton
Rouge area during the 2006-2008 monitoring period.
    EPA believes that the progress made to reduce emissions in the
Baton Rouge area during the 2002-2008 timeframe resulting in achieving
attainment of both the 1-hour and 1997 8-hour ozone standards is from
permanent and enforceable measures which achieved significant
reductions as summarized in Table 2.

                 Table 2--Summary of Emission Reductions
------------------------------------------------------------------------
                                              NOX TPD         VOC TPD
------------------------------------------------------------------------
Adjusted Base Year (2002) Inventory.....           193.3           103.5
2008 Emissions..........................           143.2            97.8
------------------------------------------------------------------------

    Emissions of both VOC and NOX have been reduced during
the time period leading up to December 31, 2008, the date when Baton
Rouge reached attainment for the 1-hour standard, to an extent that
there are currently excess emission reductions for both ozone
standards. Even though the NOx rules were fully implemented by May of
2005, the area was prevented from attaining in 2005 by the four
exceedances experienced in the 2003-2004 monitoring period.

    The preceding discussion demonstrates that permanent and
enforceable emission reduction measures adopted and implemented by the
State have been effective in reaching attainment of both the 1-hour and
1997 8-hour ozone standards.

VI. Proposed Action

    EPA is proposing to make a determination to terminate (Termination
Determination) the section 185 fee penalty requirement for the Baton
Rouge area for the 1-hour ozone standard. For the reasons set forth in
this notice, this proposed determination is based on EPA's
determination that the area has attained and continues to attain the 1-

hour ozone standard due to permanent and enforceable emissions
reductions.

VII. Statutory and Executive Order Reviews

    This action proposes to make a determination of termination of the
CAA section 185 penalty fee requirement based on attainment of the 1-
hour ozone standard due to permanent and enforceable emission
reductions, and would, if finalized, result in the termination of the
section 185 fee requirements for the 1-hour standard, and would not
impose any additional requirements. For that reason, this proposed
action:
    [cir] 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);
    [cir] Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    [cir] 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.);
    [cir] 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);
    [cir] Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
    [cir] Is not an economically significant regulatory action based on
health or safety risks subject to Executive Order 13045 (62 FR 19885,
April 23, 1997);
    [cir] Is not a significant regulatory action subject to Executive
Order 13211 (66 FR
    28355, May 22, 2001);
    [cir] Is not subject to the 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
    [cir] Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994). In addition,
this rule does not have Tribal implications as specified by Executive
Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not
approved to apply in Indian country located in the State, and EPA notes
that it will not impose substantial direct costs on Tribal governments
or preempt Tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental
relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping
requirements, Volatile organic compounds.

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

    Dated: March 19, 2011.
Al Armendariz,
Regional Administrator, Region 6.
[FR Doc. 2011-7325 Filed 3-28-11; 8:45 am]
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