Justice in Minority Populations and Low-Income Populations

    The EPA believes the human health or environmental risk addressed
by this action will not have potential disproportionately high and
adverse human health or environmental effects on minority, low income,
or indigenous populations. The results of this evaluation are included
in the RIA, located in the docket.

List of Subjects

40 CFR part 68

    Environmental protection, Administrative practice and procedure,
Air pollution control, Chemicals, Hazardous substances,
Intergovernmental relations, Reporting and recordkeeping requirements.

    Dated: February 25, 2016.
Gina McCarthy,
Administrator.
    For the reasons set out in the preamble, title 40, chapter I, part
68, of the Code of Federal Regulations is proposed to be amended as
follows:

PART 68--CHEMICAL ACCIDENT PREVENTION PROVISIONS

0
1. The authority citation for part 68 continues to read as follows:

    Authority:  42 U.S.C. 7412(r), 7601(a)(1), 7661-7661f.

0
2. Amend Sec.  68.3 by:
0
a. Adding in alphabetical order the definition ``Active measures'';
0
b. Revising the definition ``Catastrophic release'', and
0
c. Adding in alphabetical order, the definitions, ``CBI'',
``Feasible'', ``Inherently safer technology or design'', ``LEPC'',
``Passive measures'', ``Procedural measures'', ``Root cause'', and
``Third-party audit''.
    The additions and revisions read as follows:

Sec.  68.3  Definitions.

* * * * *
    Active measures means risk management measures or engineering
controls that rely on mechanical, or other energy input to detect and
respond to process deviations. Examples of active measures include
alarms, safety instrumented systems, and detection hardware (such as
hydrocarbon sensors).
* * * * *
    Catastrophic release means a major uncontrolled emission, fire, or
explosion, involving one or more regulated substances that results in
deaths, injuries, or significant property damage on-site, or known
offsite deaths, injuries, evacuations, sheltering in place, property
damage, or environmental damage.
    CBI means confidential business information.
* * * * *

    Feasible means capable of being successfully accomplished within a
reasonable time, accounting for economic, environmental, legal, social,
and technological factors. Environmental factors would include
consideration of potential transferred risks for new risk reduction
measures.
* * * * *
    Inherently safer technology or design means risk management
measures that minimize the use of regulated substances, substitute less
hazardous substances, moderate the use of regulated substances, or
simplify covered processes in order to make accidental releases less
likely, or the impacts of such releases less severe.
* * * * *
    LEPC means local emergency planning committee as established under
42 U.S.C. 11001(c).
* * * * *
    Passive measures means risk management measures that use design
features that reduce the hazard without human, mechanical, or other
energy input. Examples of passive measures include pressure vessel
designs, dikes, berms, and blast walls.
* * * * *
    Procedural measures means risk management measures such as
policies, operating procedures, training, administrative controls, and
emergency response actions to prevent or minimize incidents.
* * * * *
    Root cause means a fundamental, underlying, system-related reason
why an incident occurred that identifies a correctable failure(s) in
management systems.
* * * * *
    Third-party audit means a compliance audit conducted pursuant to
the requirements of Sec. Sec.  68.59 and/or 68.80, by an entity
(individual or firm) meeting the competency, independence and
impartiality criteria in those sections.
* * * * *
0
3. Amend Sec.  68.10 by:
0
a. Revising paragraphs (a) introductory text; (a)(2) and (3); and
adding paragraph (a)(4);
0
b. Redesignating paragraphs (b) through (f) as paragraphs (f) through
(j);
0
c. Adding new paragraphs (b) through (e); and
0
d. Revising the newly designated paragraph (f)(2).
    The revisions and additions read as follow:

Sec.  68.10  Applicability.

    (a) Except as provided in paragraphs (b) through (e) of this
section, an owner or operator of a stationary source that has more than
a threshold quantity of a regulated substance in a process, as
determined under Sec.  68.115, shall comply with the requirements of
this part no later than the latest of the following dates:
* * * * *
    (2) Three years after the date on which a regulated substance is
first listed under Sec.  68.130;
    (3) The date on which a regulated substance is first present above
a threshold quantity in a process; or
    (4) For any revisions to this part, the effective date of the final
rule.
    (b) Within 1 year of [DATE 1 YEAR AFTER THE EFFECTIVE DATE OF THE
FINAL RULE] the owner or operator of a stationary source shall comply
with the emergency response coordination activities in Sec.  68.93(a)
and (b).
    (c) Within 3 years of the LEPC or equivalent requesting in writing,
pursuant to Sec.  68.90(b)(2), the owner or operator must develop and
implement an emergency response program in accordance with Sec.  68.95.
    (d) By [DATE 4 YEARS AFTER THE EFFECTIVE DATE OF THE FINAL RULE],
the owner or operator shall comply with the following provisions
promulgated on [PUBLICATION DATE OF FINAL RULE]:
    (1) Third-party audit provisions in Sec. Sec.  68.58(f), 68.58(g),
68.58(h), 68.59, 68.79(f), 68.79(g), 68.79(h), and 68.80;
    (2) Incident investigation root cause analysis provisions in
Sec. Sec.  68.60(d)(7) and 68.81(d)(7) and the incident root cause
category information provision in Sec.  68.42(b)(10);
    (3) Safer technology and alternative analysis provisions in Sec.
68.67(c)(8);
    (4) Emergency response exercise provisions of Sec.  68.96, and;
    (5) Availability of information provisions in Sec. Sec.  68.205,
68.210(b), 68.210(c), and 68.210(d).
    (e) By [DATE 5 YEARS AFTER EFFECTIVE DATE OF THE FINAL RULE], the
owner or operator shall comply with the risk management plan provisions
of subpart G promulgated on [PUBLICATION DATE OF FINAL RULE].
    (f) * * *
    (2) The distance to a toxic or flammable endpoint for a worst-case
release assessment conducted under subpart B and Sec.  68.25 is less
than the distance to any public receptor, as defined in Sec.  68.3; and
* * * * *
0
4. Amend Sec.  68.12 by:
0
a. Revising paragraphs (c)(4) and (5), and adding paragraph (c)(6); and
0
b. Revising paragraphs (d)(4) and (5), and adding paragraph (d)(6).
    The revisions and additions read as follows:

Sec.  68.12  General requirements.

* * * * *
    (c) * * *
    (4) Coordinate response actions with local emergency planning and
response agencies as provided in Sec.  68.93;
    (5) Develop and implement an emergency response program, and
conduct exercises, as provided in Sec. Sec.  68.90 to 68.96; and
    (6) Submit as part of the RMP the data on prevention program
elements for Program 2 processes as provided in Sec.  68.170.
    (d) * * *
    (4) Coordinate response actions with local emergency planning and
response agencies as provided in Sec.  68.93;
    (5) Develop and implement an emergency response program, and
conduct exercises, as provided in Sec. Sec.  68.90 to 68.95 96 of this
part; and
    (6) Submit as part of the RMP the data on prevention program
elements for Program 3 processes as provided in Sec.  68.175.
0
5. Amend Sec.  68.42 by redesignating paragraphs (b)(10) and (b)(11) as
paragraphs (b)(11) and (b)(12) and adding a new paragraph (b)(10) to
read as follows:

Sec.  68.42  Five-year accident history.

* * * * *
    (b) * * *
    (10) Categories of root causes identified based on the root cause
analysis required in the incident investigation in accordance with
Sec.  68.60(d)(7) or Sec.  68.81(d)(7);
* * * * *
0
6. Amend Sec.  68.48 by revising paragraph (a)(1) to read as follows:

Sec.  68.48  Safety information.

    (a) * * *
    (1) Safety Data Sheets (SDS) that meet the requirements of 29 CFR
1910.1200(g);
* * * * *
0
7. Amend Sec.  68.50 by revising paragraph (a)(2) to read as follows:

Sec.  68.50  Hazard review.

    (a) * * *
    (2) Opportunities for equipment malfunctions or human errors that
could cause an accidental release, including findings from incident
investigations;
* * * * *
0
8. Amend Sec.  68.54 by revising paragraphs (a), (b), and (d); and
Adding a new paragraph (e) to read as follows:

Sec.  68.54  Training.

    (a) The owner or operator shall ensure that each employee presently
involved

in operating a process, and each employee newly assigned to a covered
process have been trained or tested competent in the operating
procedures provided in Sec.  68.52 that pertain to their duties. For
those employees already operating a process on June 21, 1999, the owner
or operator may certify in writing that the employee has the required
knowledge, skills, and abilities to safely carry out the duties and
responsibilities as provided in the operating procedures.
    (b) Refresher training. Refresher training shall be provided at
least every three years, and more often if necessary, to each employee
involved in operating a process to ensure that the employee understands
and adheres to the current operating procedures of the process. The
owner or operator, in consultation with the employees operating the
process, shall determine the appropriate frequency of refresher
training.
* * * * *
    (d) The owner or operator shall ensure that employees involved in
operating a process are trained in any updated or new procedures prior
to startup of a process after a major change.
    (e) For the purposes of this section, the term employee also
includes supervisors responsible for directing process operations.
0
9. Amend Sec.  68.58 by revising paragraph (a) and adding paragraphs
(f) through (h) to read as follows:

Sec.  68.58  Compliance audits.

    (a) The owner or operator shall certify that they have evaluated
compliance with the provisions of this subpart for each covered
process, at least every three years to verify that the procedures and
practices developed under the rule are adequate and are being followed.
When required as set forth in paragraph (f), the compliance audit shall
be a third-party audit.
* * * * *
    (f) Third-party audit applicability. The next required compliance
audit shall be a third-party audit when one of the following conditions
apply:
    (1) An accidental release meeting the criteria in Sec.  68.42(a)
from a covered process at a stationary source has occurred; or
    (2) An implementing agency requires a third-party audit based on
non-compliance with the requirements of this subpart, including when a
previous third-party audit failed to meet the competency, independence,
or impartiality criteria of Sec.  68.59(b).
    (g) Implementing agency notification and appeals. (1) If an
implementing agency makes a preliminary determination that a third-
party audit is necessary pursuant to paragraph (f)(2) of this section,
the implementing agency will provide written notice to the owner or
operator stating the reasons for the implementing agency's
determination.
    (2) Within 30 days of receipt of such written notice, the owner or
operator may provide information and data to, and may consult with, the
implementing agency on the determination. Thereafter, the implementing
agency will provide a final determination to the owner or operator.
    (3) If the final determination requires a third-party audit, the
owner or operator shall comply with the requirements of Sec.  68.59,
pursuant to the schedule in paragraph (h) of this section.
    (4) Appeals. The owner or operator may appeal a final determination
made by an implementing agency under paragraph (g)(2) of this section
within 30 days of receipt of the final determination. The appeal shall
be made to the EPA Regional Administrator, or for determinations made
by other implementing agencies, the administrator or director of such
implementing agency. The appeal shall contain a clear and concise
statement of the issues, facts in the case, and any relevant additional
information. In reviewing the appeal, the implementing agency may
request additional information from the owner or operator. The
implementing agency will provide a written, final decision on the
appeal to the owner or operator.
    (h) Schedule for conducting a third-party audit. The audit and
audit report shall be completed, and the audit report submitted to the
implementing agency pursuant to Sec.  68.59(c)(3) as follows, unless a
different timeframe is specified by the implementing agency:
    (1) Within 12 months of when any third-party audit is required
pursuant to paragraphs (f) and/or (g) of this section; or
    (2) Within three years of completion of the previous compliance
audit, whichever is sooner.
0
10. Section 68.59 is added to subpart C to read as follows:

Sec.  68.59  Third-party audits.

    (a) Applicability. The owner or operator shall engage a third-party
auditor to evaluate compliance with the provisions of this subpart in
accordance with the requirements of this section when either criterion
of Sec.  68.58(f) is met.
    (b) Auditor qualifications. The owner or operator shall determine
and document that the auditor and/or audit team are independent and
impartial, and that the auditor's or audit team's credentials address
the following competency requirements:
    (1) Competency requirements. The auditor/auditor team shall be:
    (i) Knowledgeable with the requirements of this part;
    (ii) Experienced with the stationary source type and processes
being audited and applicable recognized and generally accepted good
engineering practices;
    (iii) Trained or certified in proper auditing techniques; and
    (iv) A licensed Professional Engineer (PE), or shall include a
licensed PE on the audit team.
    (2) Independence and impartiality requirements. The auditor/audit
team shall:
    (i) Act impartially when performing all activities under this
section;
    (ii) Receive no financial benefit from the outcome of the audit,
apart from payment for the auditing services;
    (iii) Not have conducted past research, development, design,
construction services, or consulting for the owner or operator within
the last 3 years. For purposes of this requirement, consulting does not
include performing or participating in third-party audits pursuant to
Sec.  68.59 or Sec.  68.80;
    (iv) Not provide other business or consulting services to the owner
or operator, including advice or assistance to implement the findings
or recommendations in an audit report, for a period of at least 3 years
following submission of the final audit report;
    (v) Ensure that all personnel involved in the audit sign and date
the conflict of interest statement in Sec.  68.59(c)(1)(v); and
    (vi) Ensure that all personnel involved in the audit do not accept
future employment with the owner or operator of the stationary source
for a period of at least 3 years following submission of the final
audit report. For purposes of this requirement, employment does not
include performing or participating in third-party audits pursuant to
Sec.  68.59 or Sec.  68.80.
    (3) The auditor shall have written policies and procedures to
ensure that all personnel comply with the competency, independence, and
impartiality requirements of this section.
    (c) Third-party audit report. The owner or operator shall ensure
that the auditor prepares and submits an audit report as follows:
    (1) The scope and content of each audit report shall:
    (i) Identify the lead auditor or manager, participating
individuals, and any other key persons participating in

the audit, including names, titles, and summaries of qualifications
demonstrating that the competency requirements in paragraph (b)(1) of
this section are met;
    (ii) Document the auditor's evaluation, for each covered process,
of the owner or operator's compliance with the provisions of this
subpart to determine whether the procedures and practices developed by
the owner or operator under this rule are adequate and being followed;
    (iii) Document the findings of the audit, including any identified
compliance or performance deficiencies;
    (iv) Include a summary of the owner's or operator's comments on,
and identify any adjustments made by the auditor to, any draft audit
report provided by the auditor to the owner or operator for review or
comment; and
    (v) Include the following certification, signed and dated by the
auditor or supervising manager for the audit:

    I certify that this RMP compliance audit report was prepared
under my direction or supervision in accordance with a system
designed to assure that qualified personnel properly gather and
evaluate the information upon which the audit is based. I further
certify that the audit was conducted and this report was prepared
pursuant to the requirements of subpart C of 40 CFR part 68 and all
other applicable auditing, competency, independence, impartiality,
and conflict of interest standards and protocols. Based on my
personal knowledge and experience, and inquiry of personnel involved
in the audit, the information submitted herein is true, accurate,
and complete. I am aware that there are significant penalties for
submitting false information, including the possibility of fines and
imprisonment for knowing violations.

    (2) The auditor shall retain copies of all audit reports and
related records for a period of five years, and make them available if
directed by the owner or operator, to the owner or operator and/or the
implementing agency.
    (3) The auditor shall submit the audit report to the implementing
agency at the same time, or before, it provides it to the owner or
operator.
    (4) The audit report and related records shall not be privileged as
attorney-client communications or attorney work products, even if
written for or reviewed by legal staff.
    (d) Third-party audit findings. (1) Findings response report. As
soon as possible, but no later than 90 days after receiving the final
audit report, the owner or operator shall determine an appropriate
response to each of the findings in the audit report, and develop and
provide to the implementing agency a findings response report that
includes:
    (i) A copy of the final audit report;
    (ii) An appropriate response to each of the audit report findings;
    (iii) A schedule for promptly addressing deficiencies; and
    (iv) A certification, signed and dated by a senior corporate
officer, or an official in an equivalent position, of the owner or
operator of the stationary source, stating:

    I certify under penalty of law that the attached RMP compliance
audit report was received, reviewed, and responded to under my
direction or supervision by qualified personnel. I further certify
that appropriate responses to the findings have been identified and
deficiencies were corrected, or are being corrected, consistent with
the requirements of subpart C of 40 CFR part 68, as documented
herein. Based on my personal knowledge and experience, or inquiry of
personnel involved in evaluating the report findings and determining
appropriate responses to the findings, the information submitted
herein is true, accurate, and complete. I am aware that there are
significant penalties for submitting false information, including
the possibility of fines and imprisonment for knowing violations.

    (2) Schedule to address deficiencies. The owner or operator shall
implement the schedule to address deficiencies identified in the audit
findings response report in paragraph (d)(1)(iii) of this section and
document the action taken to address each deficiency, along with the
date completed.
    (3) Submission to board of directors. The owner or operator shall
immediately provide a copy of each document required under paragraphs
(d)(1) and (d)(2) of this section, when completed, to the owner or
operator's audit committee of the Board of Directors, or other
comparable committee, if one exists.
    (e) Recordkeeping. The owner or operator shall retain at the
stationary source, the following:
    (1) The two most recent third-party audit reports, related findings
response reports, documentation of actions taken to address
deficiencies, and related records. This requirement does not apply to
any document that is more than five years old.
    (2) Copies of all draft third-party audit reports. The owner or
operator shall provide draft third-party audit reports to the
implementing agency upon request. This requirement does not apply to
any draft audit reports that are more than five years old.
0
11. Amend Sec.  68.60 by:
0
a. Revising paragraph (a);
0
b. Redesignating paragraphs (c) through (f) as paragraphs (d) through
(g);
0
c. Adding a new paragraph (c); and
0
d. Revising the newly designated paragraphs (d) and (g).
    The revisions and additions read as follows:

Sec.  68.60  Incident investigation.

    (a) The owner or operator shall investigate each incident that:
    (1) Resulted in a catastrophic release (including when the affected
process is decommissioned or destroyed following, or as the result of,
an incident); or
    (2) Could reasonably have resulted in a catastrophic release (i.e.,
was a near miss).
* * * * *
    (c) An incident investigation team shall be established and consist
of at least one person knowledgeable in the process involved and other
persons with appropriate knowledge and experience to thoroughly
investigate and analyze the incident.
    (d) A report shall be prepared at the conclusion of the
investigation. The report shall be completed within 12 months of the
incident, unless the implementing agency approves, in writing, an
extension of time. The report shall include:
    (1) Date, time, and location of incident;
    (2) Date investigation began;
    (3) A description of the incident, in chronological order,
providing all relevant facts;
    (4) The name and amount of the regulated substance involved in the
release (e.g., fire, explosion, toxic gas loss of containment) or near
miss and the duration of the event;
    (5) The consequences, if any, of the incident including, but not
limited to: injuries, fatalities, the number of people evacuated, the
number of people sheltered in place, and the impact on the environment;
    (6) Emergency response actions taken;
    (7) The factors that contributed to the incident including the
initiating event, direct and indirect contributing factors, and root
causes. Root causes shall be determined by conducting an analysis for
each incident using a recognized method; and
    (8) Any recommendations resulting from the investigation and a
schedule for addressing them.
* * * * *
    (g) Incident investigation reports shall be retained for five
years.
0
12. Amend Sec.  68.65 by revising the first sentence of paragraph (a)
and the note to paragraph (b) to read as follows:

Sec.  68.65  Process safety information.

    (a) The owner or operator shall complete a compilation of written
process safety information before conducting any process hazard
analysis required by the rule, and shall keep process safety
information up-to-date. * * *

    (b) * * *
    Note to paragraph (b): Safety Data Sheets (SDS) meeting the
requirements of 29 CFR 1910.1200(g) may be used to comply with this
requirement to the extent they contain the information required by this
subparagraph.
* * * * *
0
13. Amend Sec.  68.67 by:
0
a. Revising paragraph (c)(2);
0
b. In paragraph (c)(6) removing the word ``and'';
0
c. In paragraph (c)(7) removing the period at the end of the paragraph
and adding ``; and'' in its place; and
0
d. Adding paragraph (c)(8).
    The revisions and additions read as follows:

Sec.  68.67  Process hazard analysis.

* * * * *
    (c) * * *
    (2) The findings from all incident investigations required under
section 68.81, as well as any other potential failure scenarios;
* * * * *
    (8) For processes in NAICS 322, 324, and 325, safer technology and
alternative risk management measures applicable to eliminating or
reducing risk from process hazards.
    (i) The owner or operator shall consider, in the following order of
preference, inherently safer technology or design, passive measures,
active measures, and procedural measures. A combination of risk
management measures may be used to achieve the desired risk reduction.
    (ii) The owner or operator shall determine the feasibility of the
inherently safer technologies and designs considered.
* * * * *
0
14. Amend Sec.  68.71 by adding paragraph (d) to read as follows:

Sec.  68.71  Training.

* * * * *
    (d) For the purposes of this section, the term employee also
includes supervisors with process operational responsibilities.
0
15. Amend Sec.  68.79 by revising paragraph (a) and adding paragraphs
(f) through (h) to read as follows:

Sec.  68.79  Compliance audits.

    (a) The owner or operator shall certify that they have evaluated
compliance with the provisions of this subpart for each covered
process, at least every three years to verify that the procedures and
practices developed under the rule are adequate and are being followed.
When required as set forth in paragraph (f), the compliance audit shall
be a third-party audit.
* * * * *
    (f) Third-party audit applicability. The next required compliance
audit shall be a third-party audit when one of the following conditions
apply:
    (1) An accidental release meeting the criteria in Sec.  68.42(a)
from a covered process at a stationary source has occurred; or
    (2) An implementing agency requires a third-party audit based on
non-compliance with the requirements of this subpart, including when a
previous third-party audit failed to meet the competency, independence,
or impartiality criteria of Sec.  68.80(b).
    (g) Implementing agency notification and appeals. (1) If an
implementing agency makes a preliminary determination that a third-
party audit is necessary pursuant to paragraph (f)(2) of this section,
the implementing agency will provide written notice to the owner or
operator stating the reasons for the implementing agency's
determination.
    (2) Within 30 days of receipt of such written notice, the owner or
operator may provide information and data to, and may consult with, the
implementing agency on the determination. Thereafter, the implementing
agency will provide a final determination to the owner or operator.
    (3) If the final determination requires a third-party audit, the
owner or operator shall comply with the requirements of Sec.  68.80,
pursuant to the schedule in paragraph (h) of this section.
    (4) Appeals. The owner or operator may appeal a final determination
made by an implementing agency under paragraph (g)(2) of this section
within 30 days of receipt of the final determination. The appeal shall
be made to the EPA Regional Administrator, or for determinations made
by other implementing agencies, the administrator or director of such
implementing agency. The appeal shall contain a clear and concise
statement of the issues, facts in the case, and any relevant additional
information. In reviewing the appeal, the implementing agency may
request additional information from the owner or operator. The
implementing agency will provide a written, final decision on the
appeal to the owner or operator.
    (h) Schedule for conducting a third-party audit. The audit and
audit report shall be completed, and the audit report submitted to the
implementing agency pursuant to Sec.  68.80(c)(3) as follows, unless a
different timeframe is specified by the implementing agency:
    (1) Within 12 months of when any third-party audit is required
pursuant to paragraphs (f) and/or (g) of this section; or
    (2) Within three years of completion of the previous compliance
audit, whichever is sooner.
0
16. Section 68.80 is added to subpart D to read as follows:

Sec.  68.80  Third-party audits.

    (a) Applicability. The owner or operator shall engage a third-party
auditor to evaluate compliance with the provisions of this subpart in
accordance with the requirements of this section when either criterion
of Sec.  68.79(f) is met.
    (b) Auditor qualifications. The owner or operator shall determine
and document that the auditor and/or audit team are independent and
impartial, and that the auditor's or audit team's credentials address
the following competency requirements:
    (1) Competency requirements. The auditor/auditor team shall be:
    (i) Knowledgeable with the requirements of this part;
    (ii) Experienced with the stationary source type and processes
being audited and applicable recognized and generally accepted good
engineering practices;
    (iii) Trained or certified in proper auditing techniques; and
    (iv) A licensed PE, or shall include a licensed PE on the audit
team.
    (2) Independence and impartiality requirements. The auditor/audit
team shall:
    (i) Act impartially when performing all activities under this
section;
    (ii) Receive no financial benefit from the outcome of the audit,
apart from payment for the auditing services;
    (iii) Not have conducted past research, development, design,
construction services, or consulting for the owner or operator within
the last 3 years. For purposes of this requirement, consulting does not
include performing or participating in third-party audits pursuant to
Sec.  68.59 or Sec.  68.80;
    (iv) Not provide other business or consulting services to the owner
or operator, including advice or assistance to implement the findings
or recommendations in an audit report, for a period of at least 3 years
following submission of the final audit report;
    (v) Ensure that all personnel involved in the audit sign and date
the conflict of interest statement in Sec.  68.59(c)(1)(v); and
    (vi) Ensure that all personnel involved in the audit do not accept
future employment with the owner or operator of the stationary source
for a period of at least 3 years following submission of

the final audit report. For purposes of this requirement, employment
does not include performing or participating in third-party audits
pursuant to Sec. Sec.  68.59 or 68.80.
    (3) The auditor shall have written policies and procedures to
ensure that all personnel comply with the competency, independence, and
impartiality requirements of this section.
    (c) Third-party audit report. The owner or operator shall ensure
that the auditor prepares and submits an audit report as follows:
    (1) The scope and content of each audit report shall:
    (i) Identify the lead auditor or manager, participating
individuals, and any other key persons participating in the audit,
including names, titles, and summaries of qualifications demonstrating
that the competency requirements in paragraph (b)(1) of this section
are met;
    (ii) Document the auditor's evaluation, for each covered process,
of the owner or operator's compliance with the provisions of this
subpart to determine whether the procedures and practices developed by
the owner or operator under this rule are adequate and being followed;
    (iii) Document the findings of the audit, including any identified
compliance or performance deficiencies;
    (iv) Include a summary of the owner's or operator's comments on,
and identify any adjustments made by the auditor to, any draft audit
report provided by the auditor to the owner or operator for review or
comment; and
    (v) Include the following certification, signed and dated by the
auditor or supervising manager for the audit:

    ``I certify that this RMP compliance audit report was prepared
under my direction or supervision in accordance with a system
designed to assure that qualified personnel properly gather and
evaluate the information upon which the audit is based. I further
certify that the audit was conducted and this report was prepared
pursuant to the requirements of subpart D of 40 CFR part 68 and all
other applicable auditing, competency, independence, impartiality,
and conflict of interest standards and protocols. Based on my
personal knowledge and experience, and inquiry of personnel involved
in the audit, the information submitted herein is true, accurate,
and complete. I am aware that there are significant penalties for
submitting false information, including the possibility of fines and
imprisonment for knowing violations.''

    (2) The auditor shall retain copies of all audit reports and
related records for a period of five years, and make them available if
directed by the owner or operator, to the owner or operator and/or the
implementing agency.
    (3) The auditor shall submit the audit report to the implementing
agency at the same time, or before, it provides it to the owner or
operator.
    (4) The audit report and related records shall not be privileged as
attorney-client communications or attorney work products, even if
written for or reviewed by legal staff.
    (d) Third-party audit findings. (1) Findings response report. As
soon as possible, but no later than 90 days after receiving the final
audit report, the owner or operator shall determine an appropriate
response to each of the findings in the audit report, and develop and
provide to the implementing agency a findings response report that
includes:
    (i) A copy of the final audit report;
    (ii) An appropriate response to each of the audit report findings;
    (iii) A schedule for promptly addressing deficiencies; and
    (iv) A certification, signed and dated by a senior corporate
officer, or an official in an equivalent position, of the owner or
operator of the stationary source, stating:

    ``I certify under penalty of law that the attached RMP
compliance audit report was received, reviewed, and responded to
under my direction or supervision by qualified personnel. I further
certify that appropriate responses to the findings have been
identified and deficiencies were corrected, or are being corrected,
consistent with the requirements of subpart D of 40 CFR part 68, as
documented herein. Based on my personal knowledge and experience, or
inquiry of personnel involved in evaluating the report findings and
determining appropriate responses to the findings, the information
submitted herein is true, accurate, and complete. I am aware that
there are significant penalties for submitting false information,
including the possibility of fines and imprisonment for knowing
violations.''

    (2) Schedule to address deficiencies. The owner or operator shall
implement the schedule to address deficiencies identified in the audit
findings response report in paragraph (d)(1)(iii) of this section and
document the action taken to address each deficiency, along with the
date completed.
    (3) Submission to board of directors. The owner or operator shall
immediately provide a copy of each document required under paragraphs
(d)(1) and (d)(2) of this section, when completed, to the owner or
operator's audit committee of the Board of Directors, or other
comparable committee, if one exists.
    (e) Recordkeeping. The owner or operator shall retain at the
stationary source, the following:
    (1) The two most recent third-party audit reports, related findings
response reports, documentation of actions taken to address
deficiencies, and related records. This requirement does not apply to
any document that is more than five years old.
    (2) Copies of all draft third-party audit reports. The owner or
operator shall provide draft third-party audit reports to the
implementing agency upon request. This requirement does not apply to
any draft audit reports that are more than five years old.
0
17. Amend Sec.  68.81 by revising paragraphs (a), (d) introductory
text, (d)(1), (d)(3) through (5), and adding paragraphs (d)(6) through
(8) to read as follows:

Sec.  68.81  Incident investigation.

    (a) The owner or operator shall investigate each incident that:
    (1) Resulted in a catastrophic release (including when the affected
process is decommissioned or destroyed following, or as the result of,
an incident); or
    (2) Could reasonably have resulted in a catastrophic release (i.e.,
was a near miss).
* * * * *
    (d) A report shall be prepared at the conclusion of the
investigation. The report shall be completed within 12 months of the
incident, unless the implementing agency approves, in writing, an
extension of time. The report shall include:
    (1) Date, time, and location of incident;
* * * * *
    (3) A description of the incident, in chronological order,
providing all relevant facts;
    (4) The name and amount of the regulated substance involved in the
release (e.g., fire, explosion, toxic gas loss of containment) or near
miss and the duration of the event;
    (5) The consequences, if any, of the incident including, but not
limited to: Injuries, fatalities, the number of people evacuated, the
number of people sheltered in place, and the impact on the environment;
    (6) Emergency response actions taken;
    (7) The factors that contributed to the incident including the
initiating event, direct and indirect contributing factors, and root
causes. Root causes shall be determined by conducting an analysis for
each incident using a recognized method; and
    (8) Any recommendations resulting from the investigation and a
schedule for addressing them.
* * * * *

0
18. Revise Sec.  68.90 to read as follows:

Sec.  68.90  Applicability.

    (a) Non-responding stationary source. The owner or operator of a
stationary source need not comply with Sec.  68.95 of this part
provided that:
    (1) The coordination activities required under Sec.  68.93 indicate
that adequate local public emergency response capabilities are
available to appropriately respond to any accidental release of the
regulated substances at the stationary source;
    (2) Appropriate mechanisms are in place to notify emergency
responders when there is a need for a response; and
    (3) The LEPC or equivalent has not requested in writing that the
owner or operator comply with the requirements of Sec.  68.95.
    (b) Responding stationary source. The owner or operator of a
stationary source shall coordinate response activities as described in
Sec.  68.93. The owner or operator shall also comply with the
requirements of Sec.  68.95 when:
    (1) The outcome of the response coordination activities
demonstrates that local public emergency response capabilities are not
adequate to appropriately respond to an accidental release of the
regulated substances at the stationary source; or
    (2) The LEPC or equivalent requests in writing that the owner or
operator of the stationary source comply with the requirements of Sec.
68.95.
0
19. Section 68.93 is added to subpart E to read as follows:

Sec.  68.93  Emergency response coordination activities.

    The owner or operator of a stationary source shall coordinate
response needs with local emergency planning and response organizations
to ensure resources and capabilities are in place to respond to an
accidental release of a regulated substance.
    (a) Coordination shall occur at least annually, and more frequently
if necessary, to address changes: At the source; in the source's
emergency action plan; in local authorities' response resources and
capabilities; or in the local community emergency response plan.
    (b) The owner or operator shall document coordination with local
authorities, including: The names of individuals involved and their
contact information (phone number, email address, and organizational
affiliations); dates of coordination activities; and nature of
coordination activities.
    (c) The owner or operator shall coordinate potential response
actions as follows:
    (1) For stationary sources with any regulated toxic substance held
in a process above the threshold quantity, the owner or operator shall
coordinate potential response actions with the LEPC or equivalent and
ensure that the stationary source is included in the community
emergency response plan developed under 42 U.S.C. 11003; and/or
    (2) For stationary sources with only regulated flammable substances
held in a process above the threshold quantity, the owner or operator
shall coordinate response actions with the local fire department.
0
20. Amend Sec.  68.95 by:
0
a. Revising paragraph (a)(1)(i);
0
b. Adding a sentence to the end of paragraph (a)(4); and
0
c. Revising paragraph (c).
    The revisions and addition read as follows:

68.95  Emergency response program.

    (a) * * *
    (1) * * *
    (i) Procedures for informing the public and the appropriate
Federal, state, and local emergency response agencies about accidental
releases;
* * * * *
    (4) * * * The owner or operator shall review and update the program
annually, or more frequently if necessary, to incorporate
recommendations and lessons learned from emergency response exercises
and/or incident investigations, or other available information.
* * * * *
    (c) The emergency response plan developed under paragraph (a)(1) of
this section shall be coordinated with the community emergency response
plan developed under 42 U.S.C. 11003. Upon request of the LEPC or
emergency response officials, the owner or operator shall promptly
provide to the local emergency response officials information necessary
for developing and implementing the community emergency response plan.
0
21. Section 68.96 is added to subpart E to read as follows:

Sec.  68.96  Emergency response exercises.

    (a) Notification exercises. At least once each calendar year, the
owner or operator of a stationary source with any Program 2 or Program
3 process shall conduct an exercise of the source's emergency response
notification mechanisms required under Sec.  68.90(a)(2) or Sec.
68.95(a)(1)(i), as appropriate. Owners or operators of responding
stationary sources may perform the notification exercise as part of the
tabletop and field exercises required in Sec.  68.96(b). The owner/
operator shall maintain a written record of each notification exercise
conducted over the last five years.
    (b) Emergency response exercise program. The owner or operator of a
stationary source subject to the requirements of Sec.  68.95 shall
develop and implement an exercise program for its emergency response
program, including the plan required under Sec.  68.95(a)(1). When
planning emergency response field and tabletop exercises, the owner or
operator shall coordinate with local public emergency response
officials and invite them to participate in the exercise. The emergency
response exercise program shall include:
    (1) Emergency response field exercises. The owner or operator shall
conduct a field exercise involving the simulated accidental release of
a regulated substance (i.e., toxic substance release or release of a
regulated flammable substance involving a fire and/or explosion).
    (i) Frequency. The field exercise shall be conducted at least once
every five years, and within one year of any accidental release
required to be reported under Sec.  68.42.
    (ii) Scope. The field exercise shall include tests of: Procedures
to notify the public and the appropriate Federal, state, and local
emergency response agencies about an accidental release; procedures and
measures for emergency response actions including evacuations and
medical treatment; communications systems; mobilization of facility
emergency response personnel, including contractors, as appropriate;
coordination with local emergency responders; equipment deployment; and
any other action identified in the emergency response program, as
appropriate.
    (2) Tabletop exercises. The owner or operator shall conduct a
tabletop exercise involving the simulated accidental release of a
regulated substance. The exercise shall involve facility emergency
response personnel, response contractors, and local emergency response
and planning officials, as appropriate.
    (i) Frequency. The owner or operator of a stationary source shall
conduct tabletop exercises annually, except during the calendar year
when a field exercise is conducted.
    (ii) Scope. The exercise shall include tests of: Procedures to
notify the public and the appropriate Federal, state, and local
emergency response agencies; procedures and measures for emergency
response including evacuations and medical treatment; identification of
facility emergency response personnel

and/or contractors and their responsibilities; coordination with local
emergency responders; procedures for equipment deployment; and any
other action identified in the emergency response plan, as appropriate.
    (3) Documentation. The owner/operator shall prepare an evaluation
report within 90 days of each exercise. The report shall include: A
description of the exercise scenario; names and organizations of each
participant; an evaluation of the exercise results including lessons
learned; recommendations for improvement or revisions to the emergency
response exercise program and emergency response program, and a
schedule to promptly address and resolve recommendations.
0
22. Amend Sec.  68.130 by:
0
a. In Table 1, ``List of Regulated Toxic Substances and Threshold
Quantities for Accidental Release Prevention'', under second column
entitled ``CAS No.'', removing the number ``107-18-61'' adding ``107-
18-6'' in its place; and
0
b. Revising Table 4, ``List of Regulated Flammable Substances and
Threshold Quantities for Accidental Release Prevention''.
    The revisions read as follows:

   Table 4 to Sec.   68.130--List of Regulated Flammable Substances\1\ and Threshold Quantities for Accidental
                                               Release Prevention
                                        [CAS Number Order--63 Substances]
----------------------------------------------------------------------------------------------------------------
                                                                                Threshold
                 CAS No.                            Chemical name             quantity (lbs)   Basis for listing
----------------------------------------------------------------------------------------------------------------
60-29-7.................................  Ethyl ether [Ethane, 1,1'-oxybis-            10,000                  g
                                           ].
74-82-8.................................  Methane.........................             10,000                  f
74-84-0.................................  Ethane..........................             10,000                  f
74-85-1.................................  Ethylene [Ethene]...............             10,000                  f
74-86-2.................................  Acetylene [Ethyne]..............             10,000                  f
74-89-5.................................  Methylamine [Methanamine].......             10,000                  f
74-98-6.................................  Propane.........................             10,000                  f
74-99-7.................................  Propyne [1-Propyne].............             10,000                  f
75-00-3.................................  Ethyl chloride [Ethane, chloro-]             10,000                  f
75-01-4.................................  Vinyl chloride [Ethene, chloro-]             10,000               a, f
75-02-5.................................  Vinyl fluoride [Ethene, fluoro-]             10,000                  f
75-04-7.................................  Ethylamine [Ethanamine].........             10,000                  f
75-07-0.................................  Acetaldehyde....................             10,000                  g
75-08-1.................................  Ethyl mercaptan [Ethanethiol]...             10,000                  g
75-19-4.................................  Cyclopropane....................             10,000                  f
75-28-5.................................  Isobutane [Propane, 2-methyl]...             10,000                  f
75-29-6.................................  Isopropyl chloride [Propane, 2-              10,000                  g
                                           chloro-].
75-31-0.................................  Isopropylamine [2-Propanamine]..             10,000                  g
75-35-4.................................  Vinylidene chloride [Ethene, 1,1-            10,000                  g
                                           dichloro-].
75-37-6.................................  Difluoroethane [Ethane, 1,1-                 10,000                  f
                                           difluoro-].
75-38-7.................................  Vinylidene fluoride [Ethene, 1,1-            10,000                  f
                                           difluoro-].
75-50-3.................................  Trimethylamine [Methanamine, N,              10,000                  f
                                           N-dimethyl-].
75-76-3.................................  Tetramethylsilane [Silane,                   10,000                  g
                                           tetramethyl-].
78-78-4.................................  Isopentane [Butane, 2-methyl-]..             10,000                  g
78-79-5.................................  Isoprene [1,3,-Butadiene, 2-                 10,000                  g
                                           methyl-].
79-38-9.................................  Trifluorochloroethylene [Ethene,             10,000                  f
                                           chlorotrifluoro-].
106-97-8................................  Butane..........................             10,000                  f
106-98-9................................  1-Butene........................             10,000                  f
106-99-0................................  1,3-Butadiene...................             10,000                  f
107-00-6................................  Ethyl acetylene [1-Butyne]......             10,000                  f
107-01-7................................  2-Butene........................             10,000                  f
107-25-5................................  Vinyl methyl ether [Ethene,                  10,000                  f
                                           methoxy-].
107-31-3................................  Methyl formate [Formic acid,                 10,000                  g
                                           methyl ester].
109-66-0................................  Pentane.........................             10,000                  g
109-67-1................................  1-Pentene.......................             10,000                  g
109-92-2................................  Vinyl ethyl ether [Ethene,                   10,000                  g
                                           ethoxy-].
109-95-5................................  Ethyl nitrite [Nitrous acid,                 10,000                  f
                                           ethyl ester].
115-07-1................................  Propylene [1-Propene]...........             10,000                  f
115-10-6................................  Methyl ether [Methane, oxybis-].             10,000                  f
115-11-7................................  2-Methylpropene [1-Propene, 2-               10,000                  f
                                           methyl-].
116-14-3................................  Tetrafluoroethylene [Ethene,                 10,000                  f
                                           tetrafluoro-].
124-40-3................................  Dimethylamine [Methanamine, N-               10,000                  f
                                           methyl-].
460-19-5................................  Cyanogen [Ethanedinitrile]......             10,000                  f
463-49-0................................  Propadiene [1,2-Propadiene].....             10,000                  f
463-58-1................................  Carbon oxysulfide [Carbon oxide              10,000                  f
                                           sulfide (COS)].
463-82-1................................  2,2-Dimethylpropane [Propane,                10,000                  f
                                           2,2-dimethyl-].
504-60-9................................  1,3-Pentadiene..................             10,000                  f
557-98-2................................  2-Chloropropylene [1-Propene, 2-             10,000                  g
                                           chloro-].
563-45-1................................  3-Methyl-1-butene...............             10,000                  f
563-46-2................................  2-Methyl-1-butene...............             10,000                  g
590-18-1................................  2-Butene-cis....................             10,000                  f
590-21-6................................  1-Chloropropylene [1-Propene, 1-             10,000                  g
                                           chloro-].
598-73-2................................  Bromotrifluorethylene [Ethene,               10,000                  f
                                           bromotrifluoro-].
624-64-6................................  2-Butene-trans [2-Butene, (E)]..             10,000                  f
627-20-3................................  2-Pentene, (Z)-.................             10,000                  g
646-04-8................................  2-Pentene, (E)-.................             10,000                  g
689-97-4................................  Vinyl acetylene [1-Buten-3-yne].             10,000                  f
1333-74-0...............................  Hydrogen........................             10,000                  f
4109-96-0...............................  Dichlorosilane [Silane, dichloro-            10,000                  f
                                           ].
7791-21-1...............................  Chlorine monoxide [Chlorine                  10,000                  f
                                           oxide].
7803-62-5...............................  Silane..........................             10,000                  f
10025-78-2..............................  Trichlorosilane                              10,000                  g
                                           [Silane,trichloro-].

25167-67-3..............................  Butene..........................             10,000                  f
----------------------------------------------------------------------------------------------------------------
\1\A flammable substance when used as a fuel or held for sale as a fuel at a retail facility is excluded from
  all provisions of this part (see Sec.   68.126).
Note: Basis for Listing:
\a\ Mandated for listing by Congress.
\f\ Flammable gas.
\g\ Volatile flammable liquid.

0
23. Amend Sec.  68.160 by:
0
a. Revising paragraphs (b)(1), (4), (5), (9), and (12);
0
b. Removing and reserving paragraph (b)(13);
0
c. Revising paragraphs (b)(14) through (18);
0
d. Removing and reserving paragraph (b)(19);
0
e. Revising paragraphs (b)(20)(ii) and (iv); and
0
f. Adding paragraphs (b)(21) through (23).
    The revisions and additions reads as follows:

Sec.  68.160  Registration.

* * * * *
    (b) * * *
    (1) Stationary source name, street, city, county, state, zip code,
latitude and longitude, and description of location that latitude and
longitude represent;
* * * * *
    (4) The name, telephone number, mailing address, and email address
of the owner or operator;
    (5) The name and title of the person with overall responsibility
for RMP elements and implementation, and the email address for that
person;
* * * * *
    (9) The number of full-time equivalent employees at the stationary
source;
* * * * *
    (12) If the stationary source has a CAA Title V operating permit,
and if so, the permit number;
* * * * *
    (14) The name, mailing address, email address, and telephone number
of the contractor who prepared the RMP (if any);
    (15) Source or parent company email address (if an email address
exists);
    (16) Source internet address (if an internet address exists);
    (17) Phone number at the source for public inquiries (if a public
inquiries phone number exists);
    (18) LEPC name, phone number, email address, and internet address
(if applicable and available);
* * * * *
    (20) * * *
    (ii) Corrections under Sec.  68.195 or for purposes of correcting
minor clerical errors, updating administrative information, providing
missing data elements or reflecting stationary source ownership
changes, and which do not require an update and re-submission as
specified in Sec.  68.190(b);
* * * * *
    (iv) Withdrawals of an RMP for any stationary source that was
erroneously considered subject to this part 68;
    (21) Whether chemical hazard information has been provided to the
LEPC or emergency response officials, pursuant to Sec.  68.205;
    (22) Location or means of public access for chemical hazard
information made available to the public, pursuant to Sec.  68.210; and
    (23) Whether a public meeting has been held following an RMP
reportable accident, pursuant to Sec.  68.210(d).
0
24. Amend Sec.  68.170 by:
0
a. Revising paragraph (a);
0
b. Revising paragraph (d);
0
c. Revising paragraphs (e) introductory text, (e)(1), and (f) through
(h);
0
d. Revising paragraphs (i) and (j);
0
e. Removing paragraph (k).
    The revisions and additions read as follows:

Sec.  68.170  Prevention program/Program 2.

    (a) For each Program 2 process, the owner or operator shall provide
in the RMP the information indicated in paragraphs (b) through (j) of
this section. If the same information applies to more than one covered
process, the owner or operator may provide the information only once,
but shall indicate to which processes the information applies.
* * * * *
    (d)(1) Whether safety information requirements, in Sec.  68.48, are
implemented.
    (2) A list of all Federal and state regulations, industry-specific
and established company or stationary source design codes and standards
that are applicable, and identify those followed, to demonstrate
compliance with the safety information requirements.
    (e) The most recent hazard review or hazard review update
information, pursuant to Sec.  68.50, including:
    (1) The date of completion of the most recent hazard review or
hazard review update;
* * * * *
    (f) Whether operating procedure requirements, in Sec.  68.52, are
implemented.
    (g) Whether training requirements, in Sec.  68.54, are implemented.
    (h) Whether maintenance requirements, in Sec.  68.56, are
implemented.
    (i)(1) Whether compliance audit requirements, in Sec.  68.58, are
implemented.
    (2) The date of the most recent compliance audit.
    (3) Whether the most recent compliance audit was a third-party
audit, pursuant to Sec. Sec.  68.58 and 68.59.
    (j)(1) Whether incident investigation requirements, in Sec.  68.60,
are implemented.
    (2) The date of the most recent incident investigation.
    (3) Whether root cause analyses have been completed for all
accidents and incidents that are subject to the incident investigation
requirements in Sec.  68.60.
0
25. Amend Sec.  68.175 by revising paragraphs (a) and (d) through (o)
and removing paragraph (p) to read as follows:

Sec.  68.175  Prevention program/Program 3.

    (a) For each Program 3 process, the owner or operator shall provide
the information indicated in paragraphs (b) through (o) of this
section. If the same information applies to more than one covered
process, the owner or operator may provide the information only once,
but shall indicate to which processes the information applies.
* * * * *
    (d)(1) Whether process safety information requirements, in Sec.
68.65, are implemented.

    (2) A list of all Federal and state regulations, industry-specific
and established company or stationary source design codes and standards
that are applicable, and identify those followed, to demonstrate
compliance with the process safety information requirements.
    (e)(1)The most recent process hazard analysis (PHA) or PHA update
and revalidation information, pursuant to Sec.  68.67, including:
    (i) The date of completion of the most recent PHA or update and the
technique used;
    (ii) Major hazards identified;
    (iii) Process controls in use;
    (iv) Mitigation systems in use;
    (v) Monitoring and detection systems in use; and
    (vi) Changes since the last PHA.
    (2)(i) Whether the current PHA addresses safer technology and
alternative risk management measures, as required in Sec.  68.67(c)(8).
    (ii) Whether any inherently safer technology or design measures
were implemented.
    (iii) If any inherently safer technology or design measures were
implemented, identify the measure and the technology category
(substitution, minimization, simplification, and/or moderation).
    (f) Whether operating procedure requirements, in Sec.  68.69, are
implemented.
    (g) Whether training requirements, in Sec.  68.71, are implemented.
    (h) Whether mechanical integrity requirements, in Sec.  68.73, are
implemented.
    (i) Whether management of change requirements, in Sec.  68.75, are
implemented.
    (j) Whether pre-startup review requirements, in Sec.  68.77, are
implemented.
    (k)(1) Whether compliance audit requirements, in Sec.  68.79, are
implemented.
    (2) The date of the most recent compliance audit.
    (3) Whether the most recent compliance audit was a third-party
audit, pursuant to Sec. Sec.  68.79 and 68.80.
    (l)(1) Whether incident investigation requirements, in Sec.  68.81,
are implemented.
    (2) The date of the most recent incident investigation.
    (3) Whether root cause analyses have been completed for all
accidents and incidents that are subject to the incident investigation
requirements in Sec.  68.81.
    (m) Whether employee participation requirements, in Sec.  68.83,
are implemented.
    (n) Whether hot work permit requirements, in Sec.  68.85, are
implemented.
    (o) Whether contractor safety requirements, in Sec.  68.87, are
implemented.
0
26. Revise Sec.  68.180 to read as follows:

Sec.  68.180  Emergency response program and exercises.

    (a) The owner or operator shall provide in the RMP:
    (1) Name, organizational affiliation, phone number, and email
address of local emergency planning and response organizations with
which the stationary source last coordinated emergency response
efforts, pursuant to Sec.  68.10(b)(3) or Sec.  68.93;
    (2) Whether coordination with the local emergency response
organizations is occurring at least annually, pursuant to Sec.
68.93(a); and
    (3) A list of Federal or state emergency plan requirements to which
the stationary source is subject.
    (b) The owner or operator shall identify whether the facility is a
responding stationary source or a non-responding stationary source,
pursuant to Sec.  68.90.
    (1) For non-responding stationary sources, the owner or operator
shall identify:
    (i) Whether the owner or operator of the stationary source has
confirmed that the local emergency response entity is capable of
responding to accidental releases at the stationary source;
    (ii) Whether appropriate mechanisms are in place to notify public
emergency responders when there is a need for emergency response; and
    (iii) Whether a notification exercise occurs at least annually, as
required in Sec.  68.96(a).
    (2) For responding stationary sources, the owner or operator shall
identify:
    (i) Whether the LEPC or local response entity requested the
stationary source to be a responding stationary source as required in
Sec.  68.90(a)(3);
    (ii) Whether the stationary source complies with emergency response
program requirements in Sec.  68.95;
    (iii) Whether a notification exercise occurs at least annually, as
required in Sec.  68.96(a);
    (iv) Whether a field exercise is conducted every five years and
after any RMP reportable accident, pursuant to Sec.  68.96(b)(1)(i);
and
    (v) Whether a tabletop exercise occurs at least annually, except
during the calendar year when a field exercise is conducted, as
required in Sec.  68.96(b)(2)(i).
0
27. In Sec.  68.190 amend paragraph (c) by adding a sentence at the end
to read as follows:

Sec.  68.190  Updates.

* * * * *
    (c) * * * Prior to de-registration the owner or operator shall meet
applicable reporting and incident investigation requirements in
accordance with Sec. Sec.  68.42, 68.60, and/or 68.81.
0
28. Amend Sec.  68.195 by revising paragraph (a) to read as follows:

Sec.  68.195  Required corrections.

* * * * *
    (a) New accident history information. (1) For any accidental
release meeting the five-year accident history reporting criteria of
Sec.  68.42 and occurring after April 9, 2004, the owner or operator
shall submit the data required under Sec.  68.168, except for root
cause information required in Sec.  68.42(b)(10), with respect to that
accident within six months of the release or by the time the RMP is
updated under Sec.  68.190, whichever is earlier.
    (2) Root cause information required under Sec.  68.42(b)(10) shall
be submitted within 12 months, or by the alternative timeframe provided
by an implementing agency, as specified in Sec. Sec.  68.60(d) or
68.81(d).
* * * * *
0
29. Revise Sec.  68.200 to read as follows:

Sec.  68.200  Recordkeeping.

    The owner or operator shall maintain records supporting the
implementation of this part at the stationary source for five years,
unless otherwise provided in subpart D of this part.
0
30. Section Sec.  68.205 is added to subpart H to read as follows:

Sec.  68.205  Availability of information to the LEPC or emergency
response officials.

    (a) RMP availability. The RMP required under subpart G of this part
shall be available to local emergency responders and LEPCs under 42
U.S.C. 7414(c) and 40 CFR part 1400.
    (b) Chemical hazard information. The owner or operator of a
stationary source shall develop summaries of chemical hazard
information for all regulated processes and provide the information,
upon request, to the LEPC or emergency response officials. Information
shall include, as applicable:
    (1) Information on regulated substances. Names and quantities of
regulated substances held in a process.
    (2) Accident history information. Provide the five-year accident
history information required to be reported under Sec.  68.42.
    (3) Compliance audit reports. Summaries of compliance audit reports
developed in accordance with Sec. Sec.  68.58, 68.59, 68.79, or 68.80,
as applicable, updated as part of the calendar year submission
described in subparagraph (c). The summary shall include:

    (i) The date of the report;
    (ii) Name and contact information of auditor and facility contact
person;
    (iii) Brief description of the findings;
    (iv) An appropriate response to each of the findings; and
    (v) Schedule for addressing each of the findings, as applicable.
    (4) Incident investigation reports. Summaries of incident
investigation reports developed in accordance with Sec.  68.60(d) or
Sec.  68.81(d), as applicable. The summary shall include:
    (i) Description of the incident and events leading up to it,
including a timeline;
    (ii) Brief description of the process involved;
    (iii) Names and contact information of personnel on the
investigation team;
    (iv) Direct, contributing, and root causes of the incident;
    (v) On-site and offsite impacts;
    (vi) Emergency response actions taken;
    (vii) Recommendations; and
    (viii) Schedule for implementing recommendations, as applicable.
    (5) Inherently safer technology. For each process in NAICS codes
322, 324, and 325, provide a summary of the inherently safer
technologies (IST) or inherently safer designs (ISD) implemented or
planned, in accordance with Sec.  68.67(c)(8). Update the summary, as
part of the calendar year submission described in subparagraph (c), and
following any revisions prepared in accordance with 68.67(f) and
indicate when no revisions are incorporated, as applicable. The summary
shall include:
    (i) The RMP process ID and process description, if provided, of the
process affected;
    (ii) A brief description of the IST or ISD and which IST/ISD type
of measure best characterizes it: Minimization, substitution,
moderation or simplification;
    (iii) The name of the RMP regulated substance(s) whose hazard,
potential exposure or risk was or will be reduced as a result of the
implementation and whether the substance is listed as a toxic or
flammable. If the chemicals affected are a mixture of flammables, the
name ``flammable mixture'' may be used rather than the individual
flammable substance names; and
    (iv) The date of implementation or planned implementation.
    (6) Exercises. Information on emergency response exercises required
under Sec.  68.96. The information shall include schedules for upcoming
exercises, reports for completed exercises as described in Sec.
68.96(b)(3), and any other related information.
    (c) Submission dates and updates. The owner or operator shall
update summary information every calendar year, including all
applicable information that was revised since the last submission, and
provide the information upon request.
    (d) Classified information. The disclosure of information
classified by the Department of Defense or other Federal agencies or
contractors of such agencies shall be controlled by applicable laws,
regulations, or executive orders concerning the release of classified
information.
    (e) CBI. An owner or operator asserting CBI for information
required under this section shall provide a sanitized version to the
LEPC or emergency response officials. Assertion of claims of CBI and
substantiation of CBI claims shall be in the same manner as required in
40 CFR 68.151 and 68.152 for information contained in the RMP required
under subpart G of this part. As provided under 40 CFR 68.151(b)(3), an
owner or operator of a stationary source may not claim five-year
accident history information as CBI. As provided in 40 CFR
68.151(c)(2), an owner or operator of a stationary source asserting
that a chemical name is CBI shall provide a generic category or class
name as a substitute.
0
31. Revise Sec.  68.210 to read as follows:

Sec.  68.210  Availability of information to the public.

    (a) RMP availability. The RMP required under subpart G of this part
shall be available to the public under 42 U.S.C. 7414(c) and 40 CFR
part 1400.
    (b) Chemical hazard information. The owner or operator of a
stationary source shall distribute chemical hazard information for all
regulated processes to the public in an easily accessible manner, such
as on a company Web site, including, as applicable:
    (1) Regulated substances information. Names of regulated substances
held in a process.
    (2) Safety data sheets (SDS). SDSs for all regulated substances
located at the facility.
    (3) Accident history information. Provide the five-year accident
history information required to be reported under Sec.  68.42.
    (4) Emergency response program. Summary information concerning the
source's compliance with Sec.  68.10(b)(3) or the emergency response
provisions of subpart E, including:
    (i) Whether the source is a responding stationary source or a non-
responding stationary source;
    (ii) Name and phone number of local emergency response
organizations with which the owner or operator last coordinated
emergency response efforts, pursuant to Sec.  68.180; and
    (iii) For sources subject to Sec.  68.95, procedures for informing
the public and local emergency response agencies about accidental
releases;
    (5) Exercises. The summary information required under Sec.
68.205(b)(6).
    (6) LEPC contact information. Include LEPC name, phone number, and
Web address as available.
    (c) Submission dates and updates. The owner or operator shall
update and submit information required under Sec.  68.210(b) every
calendar year, including all applicable information that was revised
since the last update.
    (d) Public meetings. The owner or operator of a stationary source
shall hold a public meeting to provide information required under Sec.
68.42 as well as other relevant chemical hazard information, such as
that described in paragraph (b), within 30 days of any accident subject
to reporting under Sec.  68.42.
    (e) Classified information. The disclosure of information
classified by the Department of Defense or other Federal agencies or
contractors of such agencies shall be controlled by applicable laws,
regulations, or executive orders concerning the release of classified
information.
    (f) CBI. An owner or operator asserting CBI for information
required under this section shall provide a sanitized version to the
public. Assertion of claims of CBI and substantiation of CBI claims
shall be in the same manner as required in 40 CFR 68.151 and 68.152 for
information contained in the RMP required under subpart G. As provided
under 40 CFR 68.151(b)(3), an owner or operator of a stationary source
may not claim five-year accident history information as CBI. As
provided in 40 CFR 68.151(c)(2), an owner or operator of a stationary
source asserting that a chemical name is CBI shall provide a generic
category or class name as a substitute.

[FR Doc. 2016-05191 Filed 3-11-16; 8:45 am]
 BILLING CODE 6560-50-P


[Federal Register Volume 86, Number 224 (Wednesday, November 24, 2021)]
[Notices]
[Pages 67094-67096]
[FR Doc No: 2021-25625]

=======================================================================
-----------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-93608; File No. SR-CboeBZX-2021-052]

Self-Regulatory Organizations; Cboe BZX Exchange, Inc.; Order
Instituting Proceedings To Determine Whether To Approve or Disapprove a
Proposed Rule Change To List and Trade Shares of the Global X Bitcoin
Trust Under BZX Rule 14.11(e)(4), Commodity-Based Trust Shares

November 18, 2021.
    On August 3, 2021, Cboe BZX Exchange, Inc. (``BZX'' or
``Exchange'') filed with the Securities and Exchange Commission
(``Commission''), pursuant to Section 19(b)(1) of the Securities
Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ a
proposed rule change to list and trade shares (``Shares'') of the
Global X Bitcoin Trust (``Trust'') under BZX Rule 14.11(e)(4),
Commodity-Based Trust Shares. The proposed rule change was published
for comment in the Federal Register on August 23, 2021.\3\
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 92689 (Aug. 17,
2021), 86 FR 47176 (``Notice''). Comments on the proposed rule
change can be found at: https://www.sec.gov/comments/sr-cboebzx-2021-052/srcboebzx2021052.htm.
---------------------------------------------------------------------------

    On September 29, 2021, pursuant to Section 19(b)(2) of the Act,\4\
the Commission designated a longer period within which to approve the
proposed rule change, disapprove the proposed rule change, or institute
proceedings to determine whether to disapprove the

proposed rule change.\5\ This order institutes proceedings under
Section 19(b)(2)(B) of the Act \6\ to determine whether to approve or
disapprove the proposed rule change.
---------------------------------------------------------------------------

    \4\ 15 U.S.C. 78s(b)(2).
    \5\ See Securities Exchange Act Release No. 93174, 86 FR 55043
(Oct. 5, 2021). The Commission designated November 21, 2021, as the
date by which it should approve, disapprove, or institute
proceedings to determine whether to disapprove the proposed rule
change.
    \6\ 15 U.S.C. 78s(b)(2)(B).
---------------------------------------------------------------------------

I. Summary of the Proposal

    As described in more detail in the Notice,\7\ the Exchange proposes
to list and trade the Shares of the Trust under BZX Rule 14.11(e)(4),
which governs the listing and trading of Commodity-Based Trust Shares
on the Exchange.
---------------------------------------------------------------------------

    \7\ See Notice, supra note 3.
---------------------------------------------------------------------------

    The investment objective of the Trust would be to reflect the
performance of the price of bitcoin less the expenses of the Trust's
operations. The Trust is not actively managed and will not seek to
reflect the performance of any benchmark or index.\8\ Each Share will
represent a fractional undivided beneficial interest in the bitcoin
held by the Trust. The Trust's assets will consist of bitcoin held by
the custodian on behalf of the Trust. The Trust generally does not
intend to hold cash or cash equivalents. However, there may be
situations where the Trust will hold cash on a temporary basis.\9\
---------------------------------------------------------------------------

    \8\ See id. at 47184-85. Global X Digital Assets, LLC
(``Sponsor'') is the sponsor of the Trust, and Delaware Trust
Company is the trustee. The Sponsor will select the administrator,
transfer agent, and marketing agent in connection with the creation
and redemption of the Shares, and a third-party regulated custodian
that will be responsible for custody of the Trust's bitcoin. See id.
at 47177, 47184.
    \9\ See id. at 47184.
---------------------------------------------------------------------------

    In seeking to achieve its investment objective, the Trust would
hold bitcoin and value its assets daily in accordance with Generally
Accepted Accounting Principles (``GAAP''), which, according to the
Exchange, generally value bitcoin by reference to orderly transactions
in the principal active market for bitcoin.\10\
---------------------------------------------------------------------------

    \10\ See id. at 47185.
---------------------------------------------------------------------------

    The net asset value (``NAV'') for the Trust will be calculated by
the administrator once a day and will be disseminated daily to all
market participants at the same time.\11\ The Sponsor will use fair
value standards according to GAAP to value the assets and liabilities
of the Trust.\12\ According to the Exchange, the fair value of an asset
that is traded on a market is measured by reference to the orderly
transactions on an active market. Among all active markets with orderly
transactions, the market that is used to determine the fair value of an
asset is the principal market (with exceptions), which is either the
market on which the Trust actually transacts or, if there is sufficient
evidence, the market with the most trading volume and level of activity
for the asset.\13\ Where there is no active market with orderly
transactions for an asset, the Sponsor's valuation committee will
follow policies and procedures to determine the fair value.\14\
---------------------------------------------------------------------------

    \11\ See id. at 47186.
    \12\ See id. at 47185.
    \13\ The Sponsor will first determine which markets are likely
to be active markets with orderly transactions for bitcoin. Among
the venues supporting active markets with orderly transactions, the
Sponsor will determine to which such venues the Trust has access and
refer to these as eligible venues. Eligible venues consist of
eligible over-the-counter venues and eligible exchanges. The Sponsor
will then determine the principal market for bitcoin as either the
market that the Trust normally transacts in for bitcoin, or, if the
Trust does not normally transact in any market or the Sponsor has
sufficient evidence that a particular market has the highest trading
volume and level of activity, such market. The Trust will not
purchase or, barring the liquidation of the Trust or the Trust
incurring certain extraordinary expenses or liabilities not
contractually assumed by the Sponsor, sell bitcoin directly. As a
result, the Sponsor expects that the principal market will generally
be the market with the highest trading volume and level of activity,
which the Sponsor expects will typically be an eligible exchange.
The Sponsor will determine the principal market for bitcoin at least
quarterly and more frequently as circumstances warrant. See id.
    \14\ See id.
---------------------------------------------------------------------------

    The Trust will provide information regarding the Trust's bitcoin
holdings, as well as an Intraday Indicative Value (``IIV'') per Share
updated every 15 seconds, as calculated by the Exchange or a third-
party financial data provider during the Exchange's Regular Trading
Hours (9:30 a.m. ET to 4:00 p.m. ET). The IIV will be calculated by
using the prior day's closing NAV per Share as a base and updating that
value during Regular Trading Hours to reflect changes in the value of
the Trust's bitcoin holdings during the trading day.\15\
---------------------------------------------------------------------------

    \15\ See id. at 47185-86.
---------------------------------------------------------------------------

    When the Trust sells or redeems its Shares, it will do so in ``in-
kind'' transactions in blocks of Shares (in an amount to be
determined). Authorized participants will deliver, or facilitate the
delivery of, bitcoin to the Trust's account with the custodian when
they purchase Shares, and the Trust, through the custodian, will
deliver bitcoin to such authorized participants when they redeem Shares
with the Trust.\16\
---------------------------------------------------------------------------

    \16\ See id. at 47184.
---------------------------------------------------------------------------

II. Proceedings To Determine Whether To Approve or Disapprove SR-
CboeBZX-2021-052 and Grounds for Disapproval Under Consideration

    The Commission is instituting proceedings pursuant to Section
19(b)(2)(B) of the Act \17\ to determine whether the proposed rule
change should be approved or disapproved. Institution of proceedings is
appropriate at this time in view of the legal and policy issues raised
by the proposed rule change, as discussed below. Institution of
proceedings does not indicate that the Commission has reached any
conclusions with respect to any of the issues involved. Rather, as
described below, the Commission seeks and encourages interested persons
to provide comments on the proposed rule change.
---------------------------------------------------------------------------

    \17\ 15 U.S.C. 78s(b)(2)(B).
---------------------------------------------------------------------------

    Pursuant to Section 19(b)(2)(B) of the Act,\18\ the Commission is
providing notice of the grounds for disapproval under consideration.
The Commission is instituting proceedings to allow for additional
analysis of the proposed rule change's consistency with Section 6(b)(5)
of the Act, which requires, among other things, that the rules of a
national securities exchange be ``designed to prevent fraudulent and
manipulative acts and practices'' and ``to protect investors and the
public interest.'' \19\
---------------------------------------------------------------------------

    \18\ Id.
    \19\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    The Commission asks that commenters address the sufficiency of the
Exchange's statements in support of the proposal, which are set forth
in the Notice,\20\ in addition to any other comments they may wish to
submit about the proposed rule change. In particular, the Commission
seeks comment on the following questions and asks commenters to submit
data where appropriate to support their views:
---------------------------------------------------------------------------

    \20\ See Notice, supra note 3.
---------------------------------------------------------------------------

    1. What are commenters' views on whether the proposed Trust and
Shares would be susceptible to manipulation? What are commenters' views
generally on whether the Exchange's proposal is designed to prevent
fraudulent and manipulative acts and practices? What are commenters'
views generally with respect to the liquidity and transparency of the
bitcoin markets, the bitcoin markets' susceptibility to manipulation,
and thus the suitability of bitcoin as an underlying asset for an
exchange-traded product?
    2. What are commenters' views of the Exchange's assertion that the
regulatory and financial landscapes relating to

bitcoin and other digital assets have changed significantly since 2016?
\21\ Are the changes that the Exchange identifies sufficient to support
the determination that the proposal to list and trade the Shares is
designed to protect investors and the public interest and is consistent
with the other applicable requirements of Section 6(b)(5) of the Act?
---------------------------------------------------------------------------

    \21\ See id. at 47178-79.
---------------------------------------------------------------------------

    3. The Exchange states that ``approving this proposal . . . [would]
allow U.S. investors with access to bitcoin in a regulated and
transparent exchange-traded vehicle that would act to limit risk''
associated with exposure through other means.\22\ Further, the Exchange
asserts that ``the manipulation concerns previously articulated by the
Commission are sufficiently mitigated to the point that they are
outweighed by quantifiable investor protection issues that would be
resolved by approving this proposal.'' \23\ What are commenters' views
regarding such assertions?
---------------------------------------------------------------------------

    \22\ See id. at 47179.
    \23\ See id. at 47183.
---------------------------------------------------------------------------

    4. According to the Exchange, ``[n]early every measurable metric
related to [Chicago Mercantile Exchange's] Bitcoin Futures has trended
consistently up since launch and/or accelerated upward in the past
year.'' \24\ Based on data provided and the academic research cited by
the Exchange, do commenters agree that the Chicago Mercantile Exchange
(``CME'')'s bitcoin futures market now represents a regulated market of
significant size? \25\ What are commenters' views on whether there is a
reasonable likelihood that a person attempting to manipulate the Shares
would also have to trade on CME to manipulate the Shares? What are
commenters' views on the Exchange's assertion that the combination of
(a) CME bitcoin futures leading price discovery; (b) the overall size
of the bitcoin market; and (c) the ability for market participants to
buy or sell large amounts of bitcoin without significant market impact
would help to prevent the Shares from becoming the predominant force on
pricing in either the bitcoin spot or CME bitcoin futures markets? \26\
---------------------------------------------------------------------------

    \24\ See id. at 47181.
    \25\ See id. at 47181-84, 47188.
    \26\ See id. at 47188-89.
---------------------------------------------------------------------------

    5. What are commenters' views on the Exchange's statement,
generally, that bitcoin is resistant to price manipulation and that
other means to prevent fraudulent and manipulative acts and practices
exist to justify dispensing with the requisite surveillance sharing
agreement with a regulated market of significant size related to
bitcoin? \27\ What are commenters' views on the Exchange's assertion in
support of such statement that significant liquidity in the spot market
and the impact of market orders on the overall price of bitcoin mean
that attempting to move the price of bitcoin is costly? \28\ What are
commenters' views on the Exchange's assertion that offering only in-
kind creations and redemptions provides unique protections against
potential attempts to manipulate the Shares and that the price the
Sponsor uses to value the Trust's bitcoin ``is not particularly
important''? \29\
---------------------------------------------------------------------------

    \27\ See id. at 47183 n.54.
    \28\ See id. at 47189.
    \29\ See id.
---------------------------------------------------------------------------

III. Procedure: Request for Written Comments

    The Commission requests that interested persons provide written
submissions of their views, data, and arguments with respect to the
issues identified above, as well as any other concerns they may have
with the proposal. In particular, the Commission invites the written
views of interested persons concerning whether the proposal is
consistent with Section 6(b)(5) or any other provision of the Act, and
the rules and regulations thereunder. Although there do not appear to
be any issues relevant to approval or disapproval that would be
facilitated by an oral presentation of views, data, and arguments, the
Commission will consider, pursuant to Rule 19b-4, any request for an
opportunity to make an oral presentation.\30\
---------------------------------------------------------------------------

    \30\ Section 19(b)(2) of the Act, as amended by the Securities
Act Amendments of 1975, Public Law 94-29 (June 4, 1975), grants the
Commission flexibility to determine what type of proceeding--either
oral or notice and opportunity for written comments--is appropriate
for consideration of a particular proposal by a self-regulatory
organization. See Securities Act Amendments of 1975, Senate Comm. on
Banking, Housing & Urban Affairs, S. Rep. No. 75, 94th Cong., 1st
Sess. 30 (1975).
---------------------------------------------------------------------------

    Interested persons are invited to submit written data, views, and
arguments regarding whether the proposal should be approved or
disapproved by December 15, 2021. Any person who wishes to file a
rebuttal to any other person's submission must file that rebuttal by
December 29, 2021.
    Comments may be submitted by any of the following methods:

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include
File Number SR-CboeBZX-2021-052 on the subject line.

Paper Comments

     Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.

All submissions should refer to File Number SR-CboeBZX-2021-052. This
file number should be included on the subject line if email is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (http://www.sec.gov/rules/sro.shtml).
Copies of the submission, all subsequent amendments, all written
statements with respect to the proposed rule change that are filed with
the Commission, and all written communications relating to the proposed
rule change between the Commission and any person, other than those
that may be withheld from the public in accordance with the provisions
of 5 U.S.C. 552, will be available for website viewing and printing in
the Commission's Public Reference Room, 100 F Street NE, Washington, DC
20549 on official business days between the hours of 10:00 a.m. and
3:00 p.m. Copies of the filing also will be available for inspection
and copying at the principal office of the Exchange. All comments
received will be posted without change. Persons submitting comments are
cautioned that we do not redact or edit personal identifying
information from comment submissions. You should submit only
information that you wish to make available publicly. All submissions
should refer to File Number SR-CboeBZX-2021-052 and should be submitted
by December 15, 2021. Rebuttal comments should be submitted by December
29, 2021.
---------------------------------------------------------------------------

    \31\ 17 CFR 200.30-3(a)(57).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\31\
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-25625 Filed 11-23-21; 8:45 am]
BILLING CODE 8011-01-P


	           UNITED STATES OF AMERICA

      DEPARTMENT OF TRANSPORTATION

             OFFICE OF THE SECRETARY

                  WASHINGTON, D.C.

_______________________________

In the Matter of

Petitions for Reconsideration of Order 2002-12-11

(2002/2003 Hong Kong Fifth-Freedom All-Cargo Frequency Proceeding)

Docket OST-2002-14049

________________________________

								Served:  December 18, 2002

NOTICE ESTABLISHING RESPONSE DATES

On December 10, 2002, the Department issued Order 2002-12-11,
instituting the 2002/2003 Hong Kong Fifth-Freedom All-Cargo Frequency
Proceeding, Docket OST-2002-14049, establishing a procedural schedule
for the proceeding and attaching an evidence request for the use of the
parties in the case.  Under the established procedures, petitions for
reconsideration of Order 2002-12-11 were to be filed December 17, 2002,
and Direct Exhibits are to be filed January 7, 2003.

The Department received three petitions for reconsideration of its
instituting order on December 17, 2002.  Polar Air Cargo, Inc. requests
reconsideration of certain portions of the evidence request attached as
Appendix A to Order 2002-12-11, and also requests that December 19,
2002, be established as an answer date for its petition.  Federal
Express filed two separate petitions, one seeking reconsideration of
technical issues in the instituting order and another requesting that
the Secretary of Transportation reconsider the Department’s
interpretation of the U.S.-Hong Kong Memorandum of Understanding.

Under the Department’s regulations, 14 CFR 302.14, answers to each of
the petitions filed December 17, 2002, would be due on December 27,
2002.  In order to establish more expeditiously a record to resolve the
issues raised, we have decided to establish Monday, December 23, 2002,
as the due date for answers to the petitions, and Friday, December 27,
2002, as the due date for replies.

In view of the above, answers to the petitions for reconsideration of
Order 2002-12-11 shall be filed by December 23, 2002, and replies shall
be filed by December 27, 2002.

2

We will serve this Notice on all parties to this proceeding by email or
facsimile and will authorize the parties to serve their responses by
facsimile or email.

By:

							READ C. VAN DE WATER

							Assistant Secretary for Aviation

   and International Affairs

(SEAL)

Dated:  December 18, 2002

An electronic version of this notice is available on the World Wide Web
at

http://dms.dot.gov//reports/reports_aviation.asp


Michael Catanzaro/ DC/ USEPA/ US 07/ 26/ 2006 08: 31 AM T o Jason Burnett/ DC/ USEPA/ US@ EPA c c thompson. chet@ epa. gov, martella. roger@ epa. gov S u b j e c t Fw: Coarse PM Exclusion  States Ability to Regulate Dust  Forwarded by Michael Catanzaro/ DC/ USEPA/ US on 07/ 26/ 2006 08: 30 AM

" Johnston, A. Todd" < ajohnston@ nma. org>

07/ 19/ 2006 10: 23 AM T o Michael Catanzaro/ DC/ USEPA/ US@ EPA c c S u b j e c t Coarse PM Exclusion  States Ability to Regulate Dust Mike

The following was pulled together to address the contention by EPA Staff, and others, that the proposed exclusion would somehow limit the states ability to control dust. Please forward to your colleagues as appropriate.

Todd Johnston NMA ISSUE: Would the Proposed Exclusions of Coarse Particulate Matter ( 1) " dominated by rural windblown dust and soils and PM generated by agricultural and mining sources" and ( 2) from " agricultural sources, mining sources and other similar sources" prevent states or local governments from imposing reasonable controls on fugitive dusts in non urban areas, and from agricultural, mining and similar sources?

CONCLUSION: No, it would not. States have a full arsenal of authority and existing laws and controls to control rural and urban dusts under their police power, public and private nuisance laws, soil conservation laws, and air pollution control laws based on available control technology and best management practices. In addition, because EPA has determined that the excluded dust does not present substantial health or welfare concerns at ambient concentrations, there is no need to control dust for the purpose of meeting those standards. EPA cites Virginia v EPA, 108 F. 3d 1397 ( D. C. Cir. 1997), as supporting its contention that the coarse PM exclusion will unlawfully bar Governors from regulating coarse PM. That case holds that EPA cannot restrict the measures chosen by a state to achieve the ambient standards. Here, EPA is not mandating particular controls a state must adopt. Instead, EPA is not regulating non urban coarse PM because it does not pose health concerns  i. e., regulation is not " requisite" to protect public health. Because agricultural, mining and similar sources produce non urban coarse PM that has not been shown to pose a health concern, those sources do not need to be controlled under the PM NAAQS. States have authority both under their traditional " police power" and under section 116 of the Clean Air Act, to go beyond and enact provisions more stringent than those required by the Clean Air Act.

States neither need to, nor have they generally relied on, the PM NAAQS to make requirements for dust control. In fact, under EPA's rural fugitive dust policy and attainment guidance, states have not been required to control rural fugitive dusts even when those dusts exceeded the PM NAAQS. Control of coarse PM dusts, such as fugitive dusts, have been made on the basis of best management practices and control techniques, not NAAQS emission factors and models ( which are neither reasonably available nor adequate). BMPs are often imposed to eliminate nuisance and soiling. States have full power and authority under their police power to regulate nuisance and soiling. States have adopted emission control regulations, including fugitive dust control plans requiring agency approval, opacity, and best management practices, such as watering, wind breaks, and speed limits, that must be applied. These measures are not based upon nor limited to PM2.5, PM10 or Total Suspended Particulate Matter, and instead control a broader and full spectrum of total particulate matter and dusts of much larger sizes that constitute the bulk of the mass of fugitive dusts generally. We know of no instance where EPA or a state was required to repeal control of a fugitive dust source because it was unnecessary to meet a PM NAAQS ( for instance when TSP was repealed and PM10 issued in 1987).