[Federal Register Volume 76, Number 205 (Monday, October 24, 2011)]
[Notices]
[Page 65718]
[FR Doc No: 2011-27427]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. EF11-14-000]

Western Area Power Administration; Notice of Filing

    Take notice that on September 23, 2011, Western Area Power
Administration submitted its Rate Order No. WAPA-151 concerning rate
and repayment data for Network Integration Transmission Service and
Western Area Lower Colorado Balancing Authority Ancillary Services, for
confirmation and approval on a final basis, effective October 1, 2011,
and ending September 30, 2016.
    Any person desiring to intervene or to protest this filing must
file in accordance with Rules 211 and 214 of the Commission's Rules of
Practice and Procedure (18 CFR 385.211, 385.214). Protests will be
considered by the Commission in determining the appropriate action to
be taken, but will not serve to make protestants parties to the
proceeding. Any person wishing to become a party must file a notice of
intervention or motion to intervene, as appropriate. Such notices,
motions, or protests must be filed on or before the comment date. On or
before the comment date, it is not necessary to serve motions to
intervene or protests on persons other than the Applicant.
    The Commission encourages electronic submission of protests and
interventions in lieu of paper using the ``eFiling'' link at http://www.ferc.gov. Persons unable to file electronically should submit an
original and 14 copies of the protest or intervention to the Federal
Energy Regulatory Commission, 888 First Street, NE., Washington, DC
20426.
    This filing is accessible on-line at http://www.ferc.gov, using the
``eLibrary'' link and is available for review in the Commission's
Public Reference Room in Washington, DC. There is an ``eSubscription''
link on the Web site that enables subscribers to receive email
notification when a document is added to a subscribed docket(s). For
assistance with any FERC Online service, please email
<EMAIL_ADDRESS>or call<PHONE_NUMBER> (toll free). For
TTY, call<PHONE_NUMBER>.
    Comment Date: 5 p.m. Eastern Time on October 25, 2011.

    Dated: October 18, 2011.
Kimberly D. Bose,
Secretary.
[FR Doc. 2011-27427 Filed 10-21-11; 8:45 am]
BILLING CODE 6717-01-P


[Federal Register Volume 78, Number 211 (Thursday, October 31, 2013)]
[Notices]
[Pages 65393-65396]
[FR Doc No: 2013-25831]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 30764; File No. 812-14189]

Ameritas Life Insurance Corp., et al; Notice of Application

October 25, 2013.
AGENCY: The Securities and Exchange Commission (``Commission'').

ACTION: Notice of application for an order approving the substitution
of certain securities pursuant to Section 26(c) of the Investment
Company Act of 1940, as amended (the ``1940 Act'').

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Applicants: Ameritas Life Insurance Corp., Ameritas Life Insurance
Corp. of New York, The Union Central Life Insurance Company (each, a
``Life Insurance Company'' and, collectively, the ``Life Insurance
Companies''), and their respective separate accounts: Ameritas Variable
Separate Account VA-2, Ameritas Variable Separate Account V, Ameritas
Variable Separate Account VA, Ameritas Variable Separate Account VL
(the ``Ameritas Life Accounts''); Ameritas Life of NY Separate Account
VA, Ameritas Life of NY Separate Account VUL (the ``Ameritas Life of NY
Accounts''); and the Carillon Life Account (each an ``Account'' and
together with the Life Insurance Companies, the ``Applicants'').

Summary of Application: The Applicants seek an order under Section
26(c) of the 1940 Act approving the substitution of shares of the VIP
Money Market Portfolio, Initial Class (the ``Replacement Portfolio'')
of the Variable Insurance Products Fund V (``VIPFV'') for shares of the
Calvert VP Money Market Portfolio (the ``Current Portfolio'') of the
Calvert Variable Series, Inc. (``CVSI'') held by the Accounts to
support certain variable annuity contracts or variable life insurance
contracts (collectively, the ``Contracts'') issued by the Life
Insurance Companies (the ``Substitution'').

DATES: Filing Date: The application was filed on July 31, 2013, and an
amended and restated application was filed on October 25, 2013.

Hearing or Notification of Hearing: An order granting the application
will be issued unless the Commission orders a hearing. Interested
persons may request a hearing by writing to the Commission's Secretary
and serving Applicants with a copy of the request, personally or by
mail. Hearing requests should be received by the Commission by 5:30
p.m. on November 14, 2013, and should be accompanied by proof of
service on the Applicants, in the form of an affidavit or, for lawyers,
a certificate of service. Hearing requests should state the nature of
the requester's interest, the reason for the request, and the issues
contested. Persons may request notification of a hearing by writing to
the Secretary of the Commission.

ADDRESSES: Secretary, Securities and Exchange Commission, 100 F Street
NE., Washington, DC 20549-1090. Applicants: Ameritas Life Insurance
Corp., Ameritas Variable Separate Account VA-2, Ameritas Variable
Separate Account V, Ameritas Variable Separate Account VA, and Ameritas
Variable Separate Account VL, 5900 ``O'' Street, Lincoln, Nebraska
68510; Ameritas Life Insurance Corp. of New York, Ameritas Life of NY
Separate Account VA, Ameritas Life of NY Separate Account VUL, 1350
Broadway, Suite 2201, New York, New York 10018; and The Union Central
Life Insurance Company and Carillon Life Account, 5900 ``O'' Street,
Lincoln, Nebraska 68510.

FOR FURTHER INFORMATION CONTACT: Michelle Roberts, Senior Counsel, or
Joyce M. Pickholz, Branch Chief, Insured Investments Office, Division
of Investment Management at<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: The following is a summary of the
application. The complete application may be obtained via the
Commission's Web site by searching for the file number, or an applicant
using the Company name box, at http://www.sec.gov/search/search.htm or
by calling<PHONE_NUMBER>.

Applicants' Representations

    1. The Life Insurance Companies, on their own behalf and on behalf
of their respective separate accounts, propose to substitute shares of
the Replacement Portfolio for shares of the Current Portfolio held by
the Accounts to fund the Contracts.
    2. Ameritas Life Insurance Corp. is the depositor and sponsor of
the Ameritas Life Accounts. Ameritas Life Insurance Corp. of New York
is the depositor and sponsor of the Ameritas Life of NY Accounts. The
Union Central Life Insurance Company is the depositor and sponsor of
the Carillon Life Account.
    3. Each Account is a ``separate account'' as defined by Rule 0-1(e)
under the 1940 Act, and is registered with the Commission as a unit
investment trust. Security interests under the Contracts have been
registered under the Securities Act of 1933, as amended (the ``1933
Act''). The application sets forth the registration statement file
numbers for the Contracts and the Separate Accounts.
    4. Each Account is divided into subaccounts, each of which invests
exclusively in shares of a corresponding investment portfolio (a
``Portfolio'') of a series-type management investment company,
including CVSI.
    5. Pursuant to the Contracts, the Life Insurance Companies reserve
the right to substitute shares of one Portfolio for shares of another.
The prospectuses for the Contracts also disclose that the Life
Insurance Companies reserve this right.
    6. CVSI is an open-end management investment company (File No. 811-
03591) that currently consists of six investment portfolios, including
the Current Portfolio, and issues a separate series of shares in
connection with each. CVSI has registered such shares under the 1933
Act (File No. 002-80154).
    7. Calvert Investment Management, Inc. (``CIM'') serves as the
investment adviser to each CVSI Portfolio. CIM is an indirect wholly-
owned subsidiary of AMHC.
    8. The VIPFV is an open-end management investment company (File No.
811-05361) that currently consists of 32 investment portfolios, one of
which, the Replacement Portfolio, is the subject of the proposed
Substitution. VIPFV issues a separate series of shares in connection
with each Portfolio and has registered such shares under the 1933 Act
(File No. 033-17704).
    9. Fidelity Management & Research Company (``FMR'') serves as the
manager of each Portfolio of VIPFV. FMR receives an investment
management fee from each Portfolio. Fidelity Investments Money
Management, Inc. (``FIMM'') and other affiliates of FMR serve as sub-
advisers for the Replacement Portfolio. FIMM has the day-to-day
responsibility of choosing investments for the Replacement Portfolio.
In addition, other affiliates of FMR serve as sub-advisers for the
Replacement Portfolio and may provide investment research and advice
for the Replacement Portfolio. None of VIPFV, FMR, FIMM, or other
affiliates of FMR are affiliated persons (or affiliated persons of
affiliated person) of any of the Applicants. Likewise, none of the
Applicants are affiliated persons (or affiliated persons of affiliated
persons) of VIPFV, FMR, FIMM or other affiliates of FMR.
    10. The Applicants state that Replacement Portfolio's and Current
Portfolio's respective investment objectives, strategies and risks are
substantially the same. A comparison of the investment objectives,
strategies and risks of the Replacement Portfolio and the Current
Portfolio is included in the application.
    11. The following table compares the fees and expenses of the
Current Portfolio and the Replacement Portfolio as of the year ended
December 31, 2012:

------------------------------------------------------------------------
                                   Current portfolio      Replacement
                                 --------------------      portfolio
                                                     -------------------
                                   Calvert Variable   Variable Insurance
                                     Series, Inc.,     Products Fund V,
                                   Calvert VP Money    VIP Money Market
                                   Market Portfolio   Portfolio, Initial
                                                             Class
------------------------------------------------------------------------
Management Fee..................  0.25%.............  0.17%.
Distribution and Service (12b-1)  None..............  None.
 Fee.
Other Expenses..................  0.14%.............  0.09%.
Total Operating Expenses........  0.39%.............  0.26%.
Fee Waivers and Expense           None \1\..........  None.
 Reimbursements.
Net Operating Expenses..........  0.39% \2\.........  0.26%.
------------------------------------------------------------------------
\1\ The Investment Advisor, CIM, has contractually agreed to limit
  direct net annual portfolio operating expenses through April 30, 2014
  to 0.40%. Under the terms of the contractual expense limitation,
  operating expenses do not include interest expense, brokerage
  commissions, taxes and extraordinary expenses. Only the Board of
  Directors of CVSI may terminate a Portfolio's expense cap before the
  contractual period expires.
\2\ The Advisor further voluntarily reimbursed expenses of $88,900 or
  0.11%, for Net Operating Expenses of 0.28% to maintain a positive
  yield during the year ended December 31, 2012.

    12. The Applicants state that the proposed Substitution is in
response to a decision by the Board of Directors for CVSI, at a meeting
held on June 5, 2013, to approve the dissolution of the Current
Portfolio on or about November 15, 2013 (the ``Liquidation Date''). The
board's decision to liquidate the Current Portfolio requires the Life
Insurance Companies to transfer accumulated Contract value invested in
the Current Portfolio to an alternative investment option available
under the Contracts on or before the Liquidation Date. Currently, the
only money market portfolio investment option offered under the
Contracts is the Current Portfolio. Accordingly, the proposed
Substitution is necessary in order to provide the Contract owners with
continued access to a money market portfolio investment option.
Consequently, the Life Insurance Companies have determined to replace
the Current Portfolio with the Replacement Portfolio via the
Substitution.
    13. The Life Insurance Companies submit that the Replacement
Portfolio is an appropriate alternative for Contract owners for several
reasons. First, its investment objectives, strategies and risks are
substantially the same as those of the Current Portfolio. Second, it is
substantially larger than the Current Portfolio, has had lower overall
expense levels than the Portfolio in recent years, and has had higher
yields in recent years than the Current Portfolio. Third, the Contracts
and other variable annuity and variable life insurance contracts issued
by the Life Insurance Companies currently offer one or more VIPFV
portfolios (other than the Replacement Portfolio).
    14. The Applicants believe that Contract owners would benefit from
the significantly larger size of the Replacement Portfolio and the
somewhat higher yields of the Replacement Portfolio, as contrasted

with the size and recent yields of the Current Portfolio. The yield for
the Current Portfolio for the seven days ending December 31, 2012 was
0.01%. The net asset value of the Current Portfolio was $85,913,000 as
of December 31, 2012. The yield for the Replacement Portfolio Initial
Class shares for the seven days ending December 31, 2012 was 0.08%. The
net asset value of the Replacement Portfolio supporting Initial Class
shares was $889,797,000 as of December 31, 2012.
    15. The Applicants believe that Contract owners will benefit from
the reduction in overall expenses of the Replacement Portfolio as
compared to the Current Portfolio. Specifically, the management fee,
other expenses, and total operating expenses are less than those of the
Current Portfolio. Both Portfolios have no charge for Rule 12b-1
distribution and services fees. The total annual operating expense of
the Replacement Portfolio is less than that of the Current Portfolio.
Given this decrease, the Applicants believe that the Substitution would
benefit Contract owners by reducing the overall level of Portfolio
expenses.

Legal Analysis and Conditions

    1. The Applicants request that the Commission issue an order
pursuant to Section 26(c) of the 1940 Act approving the proposed
Substitution. Section 26(c) of the 1940 Act requires the depositor of a
registered unit investment trust holding securities of a single issuer
to obtain Commission approval before substituting the securities held
by the trust.
    2. Applicants submit that the proposed Substitution is not the type
of substitution that Section 26(c) was designed to prevent. Section
26(c) was intended to provide for Commission scrutiny of a proposed
Substitution which could, in effect, force shareholders dissatisfied
with the substitute security to redeem their shares, thereby possibly
incurring a loss of the sales load deducted from initial premium, an
additional sales load upon reinvestment of the proceeds of redemption,
or both, as well as possibly suffering adverse tax consequences upon
redemption. Consequently, the section was designed to forestall the
ability of a depositor to present holders of interest in a unit
investment trust with situations in which a holder's only choice would
be to continue an investment in an unsuitable underlying security, or
to elect a costly and, in effect, forced redemption.
    3. Applicants submit that the proposed substitution will provide
Contract owners with substantially the same investment vehicle and
would not raise any of the aforementioned concerns that Congress
intended to address when the 1940 Act was amended to include Section
26(c).
    4. Applicants represent that redemptions and purchases will occur
simultaneously so that contract values will remain fully invested at
all times. All redemptions of shares of the Current Portfolio and
purchases of shares of the Replacement Portfolio will be effected in
accordance with Section 22(c) of the Act and Rule 22c-1 thereunder. The
Substitution will take place at relative net asset value as of the
effective date of the Substitution (``Effective Date'') with no change
in the amount of any Contract owner's contract value or death benefit
or in the dollar value of his or her investments in the money market
subaccount of the applicable Account.
    5. Contract values attributable to investments in the Current
Portfolio will be transferred to the Replacement Portfolio without
charge (including sales charges or surrender charges) and without
counting toward the number of transfers that may be permitted without
charge. Contract owners will not incur any additional fees or charges
as a result of the Substitution, nor will their rights or the Life
Insurance Companies' respective obligations under the Contracts be
altered in any way and the Substitution will not change Contract
owners' insurance benefits under the Contracts. All expenses incurred
in connection with the Substitution, including legal, accounting,
transactional, and other fees and expenses, including brokerage
commissions, will be paid by the Life Insurance Companies. In addition,
the Substitution will not impose any tax liability on Contract owners.
    6. The Applicants also represent that the Substitution will not
cause the Contract fees and charges currently paid by existing Contract
owners to be greater after the Substitution than before the
Substitution. The Life Insurance Companies will not exercise any right
they may have under the Contracts to impose restrictions on transfers
under the Contracts for the period beginning on the date of the Pre-
Substitution Notice (defined below) through at least thirty (30) days
following the Effective Date.
    7. Existing Contract owners will be notified of the proposed
Substitution by means of a prospectus or prospectus supplement for each
of the Contracts (``Pre-Substitution Notice'') at least thirty (30)
days before the Effective Date. New purchasers of the Contracts will be
provided the Pre-Substitution Notice, the Contract prospectus, and the
prospectus for the Replacement Portfolio in accordance with all
applicable legal requirements.
    8. The Pre-Substitution Notice will: (i) State that the Applicants
filed the application seeking approval of the Substitution; (ii) set
forth the anticipated Effective Date; (iii) explain that the Contract
values attributable to investments in the Current Portfolio would be
attributable to the Replacement Portfolio as of the Effective Date;
(iv) state that, from the date of the Pre-Substitution Notice until the
Effective Date, Contract Owners are permitted to transfer Contract
value out of any Current Portfolio sub-account to any other sub-
account(s) offered under the Contract without the transfer being
treated as a transfer for purposes of transfer limitations and fees
that would otherwise be applicable under the terms of the Contract; (v)
advise Contract owners that any contract value remaining in the Current
Portfolio sub-account on the Effective Date will be transferred to a
sub-account investing in the Replacement Portfolio, and that the
Substitution will take place at relative net asset value; (vi) inform
Contract owners that for at least thirty (30) days following the
Effective Date, the applicable Life Insurance Company will permit
Contract owners to make transfers of contract value out of the sub-
account investing in the Replacement Portfolio to any other available
sub-accounts offered under their Contracts without the transfer being
counted as a transfer for purposes of transfer limitations and fees, if
any, that would otherwise be applicable under the terms of the
Contracts; and (vii) inform Contract owners that, except as described
in the market timing limitations section of the relevant prospectus,
the applicable Life Insurance Company will not exercise any rights
reserved by it under the Contracts to impose additional restrictions on
transfers out of the sub-account investing in the Replacement Portfolio
for at least thirty (30) days after the Effective Date.
    9. All Contract owners will have received a copy of the most recent
prospectus for the Replacement Portfolio prior to the Substitution. In
addition, within five (5) days following the Substitution, Contract
owners affected by the Substitution will be notified in writing that
the Substitution was carried out. This notice will restate the relevant
information set forth in the Pre-Substitution Notice, and will also
explain that the contract values attributable to investments in the
Current Portfolio were transferred to the Replacement Portfolio without
charge

(including sales charges or surrender charges) and without counting
toward the number of transfers that may be permitted without charge.
    10. The Applicants represent that the Life Insurance Companies will
not receive, for three (3) years after the Effective Date, any direct
or indirect benefits from the Replacement Portfolio, its advisor or
underwriter (or their affiliates), in connection with assets
attributable to the Contracts affected by the Substitution, at a higher
rate than the Life Insurance Companies had received from the Current
Portfolio, its advisor or underwriter (or their affiliates), including
without limitation 12b-1 fees, revenue sharing or other arrangements.
The Applicants further represent that the Substitution and the
selection of the Replacement Portfolio were not motivated by any
financial consideration paid or to be paid to a Life Insurance Company
or its affiliates by the Replacement Portfolio, its advisor or
underwriter, or their affiliates.
    11. Applicants submit that the replacement of the Current Portfolio
with the Replacement Portfolio is consistent with the protection of
Contract owners and the purposes fairly intended by the policy and
provisions of the 1940 Act and, thus, meets the standards necessary to
support an order pursuant to Section 26(c) of the 1940 Act. In
addition, the Applicants submit that the proposed Substitution meets
the standards that the Commission and its staff have applied to
Substitutions that have been approved in the past.

Conclusion

    For the reasons and upon the facts set forth above in the
application, the Applicants believe that the requested order meets the
standards set forth in Section 26(c) of the 1940 Act and should
therefore be granted.

    For the Commission, by the Division of Investment Management,
pursuant to delegated authority.
Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2013-25831 Filed 10-30-13; 8:45 am]
BILLING CODE 8011-01-P


information might be useful to EPA. EPA has already explained how it
considered the SIP revisions and the basis for its final action.

7. Applicability of CAA Sections 110(l) and 193 to This Action

    Comment 41. Commenters stated that because EPA correctly found the
revisions would not interfere with the attainment or maintenance of the
NAAQS or any other requirement of the CAA, section 110(l) concerns are
not implicated. The commenters stated that as long as a SIP revision
does not ``interfere with'' air quality (i.e., make it worse), EPA must
approve it. According to the commenter, Alabama's rule is consistent
with the development of an overall plan for attainment, in that all of
the sources subject to the Rule are also subject to various other
programs and requirements that EPA has approved to ensure the NAAQS are
protected.
    Response 41. Commenters' focus on ``air quality'' is a good point--
and was EPA's primary concern as well. EPA's action in this case
focuses on the known differences between the previous EPA-approved SIP
rules and the SIP revisions in the Submittals, and what is known
regarding the technical aspects of the relationship between opacity and
PM mass emissions. Specifically, that the revised rule allows extended
periods of much higher opacity that were not previously authorized. EPA
has concluded that available evidence indicates that the revised rule
could result in more emissions, and thus interfere with attainment and
maintenance of the NAAQS, to use the commenters' term, ``make it
worse.'' Further, for older facilities (such as the ones subject to the
visible emissions rule at issue), particularly those that are less
controlled, opacity can be an important indicator of operation and
control device performance, which, in turn, can affect air quality. In
this context, and lacking reliable scientific correlations between
opacity emissions and PM NAAQS violations, EPA has concluded that the
rule changes described in the Submittals are not approvable under
section 110(l).
    With respect to the commenters' argument that other regulatory
programs exist to help insure attainment and maintenance of the NAAQS,
EPA agrees. However, for the sources affected by the visible emissions
rules at issue, the opacity standards provide an important tool to
assure compliance with these other measures. The mere existence of a
regulatory framework to provide for the attainment of the NAAQS does
not negate the need for effective tools to assure that the framework
succeeds.
    Comment 42. Commenters stated that unless ADEM relied upon the
opacity standard to comply with the PM NAAQS, section 110(l)
considerations do not come into play. The commenters further stated
that in this case, Alabama did not rely on the opacity standard to
demonstrate attainment of the PM NAAQS.
    Response 42. Alabama's visible emissions rule is part of Alabama's
plan to attain and maintain the NAAQS, and it is in the EPA-approved
SIP (and has been for a long time). Any revision to the SIP is subject,
by the plain text of the CAA, to the requirements of section 110(l).
    Comment 43. Commenters stated that EPA's October 2008 approval
applied and satisfied the correct CAA section 110(l) standard.
According to the

commenters, EPA is not required to re-examine the adequacy of the level
of reductions provided in a plan that has already achieved attainment,
or speculate how a requested SIP revision might fit into the mix of
controls that may be chosen by the state to support a future attainment
demonstration with respect to a new standard. The commenters argued
that EPA's review under CAA section 110(l) only needs to address
whether the revision would affect the status quo. EPA could have (and
in commenters' view, should have) limited its review to whether the
revision interfered with the requirement to assess good O & M of PM
control equipment between PM stack tests. Further the commenters
asserted that because Alabama did not rely on a short-term opacity/PM
relationship to support its previously approved PM attainment
demonstration, EPA was not required to analyze changes in the opacity
standard for equivalency under section 110(l).
    Response 43. EPA does not agree with commenters' characterization
of EPA's obligation under section 110(l). As a point of clarification,
Alabama has several nonattainment areas, including PM2.5
nonattainment areas. The State's visible emissions rule applies to a
group of stationary sources Statewide--it does not apply only in
designated attainment areas. Thus, EPA does not agree with commenters'
argument that because Alabama is currently attaining some NAAQS, EPA's
consideration under section 110(l) should be different. Further, as was
noted earlier, in the absence of an attainment demonstration regarding
the rules at issue, EPA can approve a SIP revision for a nonattainment
area only if EPA finds that it will not worsen air quality by
increasing emissions of a nonattainment pollutant, and it is otherwise
consistent with attainment and maintenance of the NAAQS. Even accepting
the commenters' argument that the opacity standard is intended to be a
gauge of good O & M of a source, the SIP revisions contemplated in the
Submittals raise concerns because the revisions allow facilities to
emit up to 100 percent opacity for extended periods of time--which is
hard to square with the need to assure good source operation. Indeed,
other commenters have asserted that opacity at such levels is the
equivalent to turning off any relevant control device for an extended
period of time. Even under what EPA understands commenters' argument to
be, the SIP revisions present serious concerns about good O & M and
would not be approvable.
    Comment 44. Commenters explained their view that 110(l) does not
impose on states a requirement to ``demonstrate'' that each proposed
revision will not interfere with attainment or require EPA to reject
each revision that presents ``some remote possibility for
interference.'' Commenters cited to Kentucky Resources Council (KRC),
Inc. v. EPA, 467 F.3d 986, 994-95 (6th Cir. 2006) for support.
    Response 44. Section 110(l) prohibits any SIP revision that would
have the effect of interfering with attainment or maintenance of the
NAAQS, RFP, or any other requirements of the CAA. Typically, states
elect to provide the requisite information necessary to establish that
their intended SIP revisions would not have any of these effects. EPA
often works with states to evaluate the effects of a given SIP
revision. In the final analysis, however, EPA is not authorized to
approve any SIP revision that has such effects.
    When, as here, available information indicates that the SIP
revision at issue could result in the increase in PM emissions at some
sources located in or near designated PM nonattainment areas, EPA has
concluded that the SIP revision is not approvable and that residual
uncertainty about the precise amount of additional PM emissions that
would be associated with the dramatic increases in opacity does not
render the revision approvable.
    Commenters' citation to KRC, 467 F.3d 986, is misplaced because the
case supports EPA's disapproval action. In that case, the Sixth Circuit
considered an EPA action approving revisions to the Kentucky SIP
regarding Kentucky's inspection and maintenance (I/M) program that
removed the requirement from the active portion of Kentucky's SIP. The
Court explained that Congress did not intend for EPA to ``reject each
and every SIP revision that presents some remote possibility for
interference. Thus, where the EPA does not find that a SIP revision
would interfere with attainment, approval of the revision does not do
violence to the statute.'' KRC at 994. The Court upheld EPA's view
that:

    As long as actual emissions in the air are not increased, EPA
believes that equivalent (or greater) emissions reductions will be
acceptable to demonstrate non-interference. EPA does not believe
that areas must wait to produce a complete attainment demonstration
to make any revisions to the SIP, provided the status quo air
quality is preserved.

KRC at 995 (quoting a prior SIP action, 70 FR 28,429, 28,430 (May 18,
2005)). During the course of the SIP revision at issue in that case,
EPA informed Kentucky of the need to demonstrate equivalent offsetting
reductions due to the existing nonattainment areas in Kentucky.
Kentucky responded by adopting additional control requirements into its
SIP programs which were sufficient to offset the increased emissions
anticipated as a result of removing the I/M program from the active
SIP. This type of equivalency analysis was not provided by Alabama and
we cannot conclude in this case that the status quo air quality will be
maintained. Rather, in the case of Alabama, EPA judges that there is
more than a remote possibility for increased emissions under the SIP
revision and that our current action is consistent with the KRC case.
    Comment 45. Commenters make a distinction between attainment and
nonattainment areas for purposes of a 110(l) analysis. Commenters
appear to suggest that because Alabama had no outstanding nonattainment
plans due in the time frame of the October 15, 2008, final rule, that
the 110(l) analysis should address whether the revision would affect
the status quo.
    Response 45. EPA agrees that the 110(l) analysis for a
nonattainment area should, in the absence of an attainment
demonstration, assure at least that the status quo is maintained. Thus,
EPA will generally not approve a SIP revision that allows additional
emissions of pollutants for which an area is designated nonattainment
in the absence of offsetting reductions. Because EPA now concludes that
Alabama's SIP revisions are likely to result in an increase in PM
emissions, for which parts of Alabama are designated nonattainment, it
cannot be approved consistent with section 110(l).\21\ While EPA has
previously required a more robust 110(l) analysis for nonattainment
areas, there is still an analysis required for attainment areas.
Section 110(l) applies to all SIP revisions, regardless of whether the
revision is impacting attainment areas or nonattainment areas.
Alabama's visible emissions rule at issue is part of Alabama's plan to
attain and maintain the NAAQS. The analysis under 110(l) does not
depend on what SIP revisions are currently due, although 110(l)

requires EPA to consider other applicable requirements in the SIP.
---------------------------------------------------------------------------

    \21\ As was discussed above, EPA also concludes that even if the
uncertainty about the impact of the SIP revision on PM emissions
were so great that EPA could make no technical judgment at all about
the net effect of this SIP revision on PM emissions, the revision
would still not be approvable under section 110(l).
---------------------------------------------------------------------------

    Comment 46. Commenters explained that because they believe that
there is no relationship between opacity and PM, the inquiry as to
110(l) could end there. Commenters also argued against substituting the
words ``could interfere'' for ``would interfere'' in 110(l).
    Response 46. EPA does not agree that there is no relationship
between opacity and PM emissions. Rather, EPA concludes that there is a
general relationship between opacity and PM emissions, but for a
specific source and its operating characteristics, there is uncertainty
about whether increases in opacity are accompanied by increases in PM
emissions without examination of each source at issue. In addition, EPA
does not substitute the words ``could interfere'' for ``would
interfere'' in interpreting and applying 110(l). For any given source
at any given time, it is accurate to say that increased opacity could
be accompanied by increased PM emissions. However, in evaluating what
would be allowed under the Submittals across all sources and
circumstances, EPA concludes it is likely that the increased opacity
allowed by the Submittals would result in increased PM emissions. EPA
judges the significant increase in the flexibility in the opacity
exemptions allowed to sources under the revised rule is great enough
that, absent a convincing demonstration otherwise, the Agency may only
conclude the revised rule hinders (i.e., ``would interfere'' with)
efforts to attain and maintain compliance with the PM NAAQS.
    Comment 47. Commenters explained that changes to Alabama's Visible
Emission Rule do not affect compliance with PM limits. According to the
commenter, Alabama has not relied on opacity limits to demonstrate
attainment with the PM NAAQS. Thus, the commenter argued that section
110(l) does not apply here at all.
    Response 47. Section 110(l) applies, by its plain text, to all SIP
revisions including Alabama's 2003 and 2008 Submittals. Contrary to the
commenter's belief, the State has historically included the visible
emissions rules in its SIP for purposes of attainment and maintenance
of the PM NAAQS. The fact that the State may not have sought specific
SIP credit attributable to the opacity limits (not to be confused with
SIP credit for the PM limits that such opacity limits are designed to
assure compliance with) does not mean that the opacity limits are not
part of the SIP.
    Comment 48. Commenters explained that 110(l) does not require
absolute certainty regarding interference with attainment and
maintenance of the NAAQS. According to the commenters, EPA has never
taken that position and it would be a departure from Agency practice to
take such a position. Commenters cited to KRC v. EPA, 467 F.3d 986 (6th
Cir. 2006) and Galveston-Houston Ass'n for Smog Prevention (GHASP) v.
EPA, 289 Fed. Appx. 745 (5th Cir. 2008). Commenters concluded that EPA
cannot rely on mere uncertainty as a basis for disapproving a SIP
revision.
    Response 48. EPA agrees that section 110(l) does not require
absolute certainty. EPA's decision today relies on certainties
concerning the impacts of the revisions to Alabama's visible emissions
rules in the Submittals. These certainties include that the Alabama
rule would allow for increase of maximum opacity from 40 percent to 100
percent and would allow such increases for up to 2.4 hours at a time,
instead of for only six minutes per hour. EPA is disapproving the
revision because while there are uncertainties--such as precisely when
PM mass emissions would increase or by what precise amount--EPA expects
that it is likely in at least some circumstances to result in increases
in PM mass emissions. EPA generally, absent an attainment demonstration
or offsetting emission reductions, will not approve a SIP revision that
results in increases in emissions of a pollutant for which an area is
designated nonattainment pursuant to the requirements of section
110(l). EPA has already discussed the KRC case in a previous response.
The GHASP case supports EPA's position in this action because that was
another case where the court upheld EPA's interpretation that section
110(l) requires that a SIP revision must at least maintain status quo
air quality to be approvable.

8. CAA Section 110(l) ``Demonstration'' of Non-Interference With the
NAAQS and Other Requirements

    Comment 49. Commenters argued that it is not clear what EPA means
when it says that ``Alabama has not provided EPA with an affirmative
demonstration that the [Rule] will not interfere with the attainment
and maintenance of the NAAQS'' (74 Fed. Reg. at 50933), since, in the
commenters' view, that is exactly what the 2008 revision adding the 22
percent daily average cap ensures. Commenters further stated that to
require Alabama to provide more than the modeling of its 2003 submittal
would be contrary to what the CAA requires and would be essentially
asking for the impossible given the acknowledged uncertainty between
opacity and PM, particularly for short-term analysis.
    Response 49. EPA does not agree with the commenters' interpretation
of 110(l) or characterization of what was provided to EPA. As was
explained above, EPA has concluded that the interpretation of 110(l)
that is most consistent with the plain text, legislative history, and
air quality goals of the CAA is that in order to approve the SIP
revision, there must be some reasonable basis for concluding that the
SIP revision will not interfere with attainment or maintenance of the
NAAQS, consistent with the requirements of 110(l). As commenters
acknowledged, the evaluation for this particular SIP revision is
challenging due to the inherent uncertainty in the relationship between
opacity and PM mass emissions at a given source. For this reason, it is
even more important that the demonstration be sufficient to ensure that
EPA is complying with section 110(l).
    A fundamental purpose of 110(l) is to allow SIP revisions in the
absence of a full attainment demonstration provided that such revisions
are consistent with continued attainment and maintenance of the NAAQS.
To the extent that emission increases of a particular SIP revision
cannot be modeled with some level of certainty regarding impact on the
NAAQS, section 110(l) may bar that SIP revision, absent equivalent
offsetting emissions reductions and in the absence of an attainment or
maintenance demonstration. In EPA's judgment, the analysis submitted in
connection with the SIP revisions at issue here fails to provide a
reasonable basis on which to conclude that the changes would not
interfere with attainment and maintenance of the NAAQS. EPA concludes
that the CAA prohibits this SIP revision because air emissions could be
allowed to increase and thus, worsen air quality in nonattainment
areas.
    Comment 50. Commenters argued that there is no basis for reversing
EPA's prior analysis because the current SIP ensures opacity will be
equal to or lower than that allowed under the previous SIP. Commenters
further stated that EPA demonstrated mathematically that both the
suggested changes in its 2007 proposal to approve the Rule and in
Alabama's 2008 revisions as submitted are at least as stringent as
Alabama's existing SIP and even more stringent than the 2003 revisions.
    Response 50. As discussed above, EPA has concluded after
reconsideration that it is not appropriate to measure the stringency of
the SIP revisions in the Submittals using an

``average daily limit.'' Alabama's revised rule allows for extended
periods of operation at high levels of opacity that were not previously
authorized. Absent a showing that a source's PM emissions would not be
elevated if it was permitted to have opacity at up to 100 percent for
up to 2.4 hours a day, EPA has concluded that the SIP revisions would
be inconsistent with section 110(l).
    Comment 51. Commenters argued that Alabama has made an affirmative
demonstration that the visible emissions standards in the previous SIP
and the revised SIP are equivalent. Alabama's previous visible
emissions rule allowed opacity of up to 40 percent for one six-minute
period per hour. The revised rule allows the same maximum time of
higher opacity in a single day (up to 144 minutes per day), but
eliminates the 40 percent cap. To assure equivalency with the previous
rule, the revised SIP limits the daily average opacity to less than 22
percent. The basis for derivation of the 22 percent limit was clearly
set out in EPA's final rule. 73 FR at 60958-59 (October 15, 2008).
    Response 51. As explained above, as a result of this
reconsideration EPA disagrees that the two versions of the visible
emissions rules could be equivalent, as explained in detail in the Rule
Comparison TSD included in the docket. Ultimately, if the impacts of
the two versions were actually equivalent, there would be no reason for
Alabama to seek the SIP revisions. The practical reality is that the
revised rule allows for opacity increases not previously authorized
(both in concentration and quantity of time). Furthermore, the rule at
issue specifically affects facilities which for one reason or another
are not subject to any other opacity limit--and thus this opacity limit
is particularly important both for air quality and as an indicator of
facility O & M. While EPA understands the commenters' concerns, EPA
does not agree that the two versions of the visible emissions rules are
equivalent.
    Comment 52. One commenter stated that EPA's approval was entirely
consistent with section 110(l). According to the commenter, EPA made an
``appropriate inquiry'' under section 110(l) to protect the NAAQS
because it made an equivalency determination and did not rely solely on
uncertainty as a basis for the approval. This commenter believes that
any uncertainty is erased by the 22 percent cap.
    Response 52. EPA's October 15, 2008, final action relied heavily on
the uncertainty inherent in the relationship between opacity and PM
mass emissions. The October 15, 2008, action was different from other
110(l) analyses previously completed by EPA for that reason. EPA agrees
that this rule presents particularly complex technical issues but has
ultimately decided that heavy reliance on uncertainty as a basis for
approval is not the decision most consistent with the CAA. Section
110(l) is intended to preclude SIP revisions that could have adverse
consequences for public health, and accordingly EPA thinks that it
should continue to interpret the provision using a precautionary
principle to ensure such public health protection in the face of
uncertainty about the impacts of a SIP revision.
    Comment 53. Commenters drew comparisons between Ohio's recent
opacity proposal and North Carolina's previous opacity proposal and
concluded that Alabama's opacity limits are far below those of other
states (specifically, North Carolina and Georgia).
    Response 53. EPA does not agree with commenters' assessment of
opacity requirements in other states. Alabama's revised rule was unique
in that it allows opacity of up to 100 percent (not allowed under the
recent North Carolina revisions)--and it allows such opacity for up to
2.4 consecutive hours. Opacity revisions, by nature, require detailed
case-by-case analyses. Due to the specific circumstances of a state
(i.e., attainment status, affected facilities, topography,
etc[hellip]), it is difficult to directly compare opacity rules from
state to state (or SIP to SIP). While previous opacity decisions are
informative, no other state presents a circumstance totally analogous
to Alabama's circumstances. In addition, EPA has proposed to disapprove
comparable revisions to the visible emissions rules in the Ohio SIP for
reasons comparable to those described in this final action.

9. Use of COMS and Need for Exemptions

    Comment 54. One commenter argued that without a regulatory
mechanism to address excess emissions reported from COMS, such as that
used by Alabama, sources are vulnerable to enforcement actions for
short term opacity excursions that have negligible environmental
effects.
    Response 54. The environmental effect of individual ``short-term''
opacity excursions depends upon the duration and level of such
exceedances, as well as the relationship between opacity and PM
emissions at the source where they occur. This is one reason why EPA
has concluded that use of an ``average daily opacity'' cap, in which
longer excursions at higher levels are allowed to be ``averaged out''
with periods of normal operation at lower opacity levels, does little
to help reduce PM emissions. Therefore, an ``average daily opacity
cap'' is not a sufficient basis to approve the proposed SIP revisions.
Frequent recurrence of such events may reflect the need to improve
source operation or emission controls in order to comply with the
opacity limit, but that would be masked by the averaging effect of an
average daily opacity standard.
    In the case of the visible emissions rule changes at issue in these
SIP revisions, some sources may have to take action to improve their
opacity performance in order to comply with the previous SIP rule.
Finally, today's action does not impede the State's ability to exercise
its own enforcement discretion in the event that it decides a given
opacity violation does not warrant such action.
    Comment 55. Commenters explained that when utilizing COMS that
yield opacity data for nearly 100 percent of source operating time,
given the extremely short data averages utilized for opacity data (six-
minute data averages), time periods of excess occur from even the best
operated sources.
    Response 55. EPA acknowledges that some sources may have difficulty
in complying with 20 percent opacity limits 100 percent of the time,
especially when events out of the source's control occur, but EPA
expects that all sources can comply with the pre-existing version of
the visible emissions rule that will be in place as a result of today's
disapproval action. EPA expects that any unusual difficulties for
specific sources would ease as sources subject to Alabama's visible
emissions rule take steps to improve their opacity performance.
    Comment 56. One commenter explained that 40 CFR 60.284(e) is the
recognition by EPA that some type of exemption time period is necessary
when opacity regulations are enforced by a continuous in-stack
monitoring system and that this regulation is probably the basis of the
Alabama SIP revisions. The commenter further explained its view that
the ``the preamble to both the NSPS (40 CFR 60.7(c)) and the MACT
[maximum achievable control technology] (40 CFR 63.10(e)(3))'' both
state that sources required to submit reports of excess emissions from
continuous in-stack monitoring systems are only required to submit
summary reports of the excess emissions data and not detailed reports,
provided that the total duration of excess is less than one percent of
the

total operating time of the monitored source for the operating time
period and that the monitor downtime is less than five percent of the
total operating time of the monitored source for the reporting time
period. The commenter considered these two regulations as a ``de
facto'' recognition by EPA of [the need for] exemption time periods
similar to that proposed in the Alabama SIP revisions.
    Response 56. EPA disagrees with the premise of the comment, as it
misses the mark concerning what is relevant in the context of a SIP
revision for purposes of section 110(l). The NSPS and SIPs serve
different purposes under the CAA. The NSPS are industry-specific
nationally uniform air emission standards that limit the amount of
emissions allowed from new sources or from modified existing sources.
They are technology-based standards, meaning that they contain
industry-specific limitations based on the best available technology.
Under section 111 of the CAA, a standard of performance must reflect
the degree of emission limitation and the percentage reduction
achievable through application of the best technological system of
continuous emission reduction that the Administrator determines has
been adequately demonstrated. Such determinations take into
consideration the cost of achieving such emission reduction and any
non-air quality health and environmental impact and energy
requirements. The fact that such standards contain various reporting
requirements about excess emissions does not address the issues
relevant to an analysis to support a SIP revision.
    SIPs are EPA-approved state plans for the establishment,
regulation, and enforcement of air pollution standards--the NAAQS.
Under section 110 of the Act, each state must adopt a plan to provide
for implementation, maintenance, and enforcement of the primary and
secondary NAAQS within the state. Because SIPs serve a different
purpose than the NSPS, EPA evaluates them differently. For example, the
NSPS provide exemptions from compliance during brief periods such as
startup, shutdown, and malfunctions (SSM). Such automatic exemptions
are not appropriate for SIP rules because SIPs are ambient-based
standards and any emissions above the allowable may cause or contribute
to violations of the NAAQS. Generally, because SIPs must provide for
attainment and maintenance of the NAAQS and the achievement of
prevention of significant deterioration increments, EPA's policy is
that all periods of excess emissions must be considered violations.
SIPs can contain regulations with affirmative defenses for violations
that occur due to events not reasonably within the control of the
source, but they should not contain automatic exemptions. EPA's policy
with respect to appropriate SIP provisions is contained in the 1999
memorandum entitled ``State Implementation Plans (SIPs): Policy
Regarding Excess Emissions During Malfunctions, Startup, and
Shutdown.''
    Comment 57. Commenters explained that despite its best efforts,
continuous compliance with the 20 percent opacity limit is an
unachievable goal, and imposing penalties for failing to achieve an
unattainable goal does not promote continuous, long term environmental
improvement.
    Response 57. EPA's final action does not impose penalties or
implicate any specific enforcement actions. Rather, it simply finds
that Alabama's revisions to its visible emissions rule are not
approvable under section 110(l) of the CAA. EPA encourages the
commenter to discuss specific compliance concerns with ADEM. Sources
should generally be capable of complying with the Alabama opacity rule,
but we remain open to considering further SIP revisions that provide
greater assurance that PM emissions will not increase as a result.

10. Relationship of SIP Revisions to 40 CFR 51.212

    Comment 58. Commenters argued that the visible emissions rule in
the revised SIP is appropriate under 40 CFR 51.212(b). Some commenters
also discussed that the ``indirect'' use of COMS for compliance
determinations adopted by Alabama and many other states is based on the
approach adopted by EPA under the NSPS, which also specify Method 9 as
the compliance method but require reporting of COMS data as an
indicator of good control device O & M. The commenters asserted that
because ADEM's rule continues to use COMS data as an indicator of good
O & M, but now simply provides an option for its use ``directly * * *
for compliance determinations,'' respecting the independently
enforceable opacity limit as allowed under Appendix P, the rule
continues to meet EPA's criteria. Other commenters highlighted the
position that 51.212 provides states with discretion and the Alabama
rule enhances enforcement through use of COMS.
    Response 58. In the present action, EPA is not evaluating the
approvability of the SIP revision to Alabama's visible emission rule
revisions in light of the requirements of 40 CFR 51.212. While EPA
agrees that this provision requires states to have SIPs with
appropriate methods to assure compliance with emissions limits, EPA is
not here addressing whether the revisions at issue would or would not
meet those requirements. EPA's analysis for the present action focused
on the section 110(l) limitations on EPA's authority to approve a SIP
revision. Even if Alabama's revised visible emissions rule were
consistent with section 51.212, this would not alleviate the concerns
that EPA has with respect to section 110(l).
    Comment 59. Commenters stated that ADEM's two percent criterion is
consistent with policies developed by EPA in the 1980s to support the
use of continuous monitors. Commenters noted that there is no national
standard on visible emissions and ADEM's use of a flexible approach is
consistent with part 51.
    Response 59. In the present rulemaking, EPA is not articulating a
position on ADEM's enforcement discretion or policies regarding
enforcement discretion, although EPA is aware of the fairly recent
Eleventh Circuit Court's opinion addressing ADEM's enforcement
discretion in a visible emissions context. As was explained earlier,
EPA acknowledges the various comments that support ADEM's Submittals by
citing to other federal requirements. However, EPA's analysis was
focused on its authority under section 110, and the review of ADEM's
Submittals that is most supported by the CAA.

11. Relationship of SIP Revisions to Compliance Assurance Monitoring
(CAM) Rule

    Comment 60. Commenters explained that although Alabama's visible
emissions rule may have some role in evaluating long-term PM control
device operation, it is no longer the primary means by which major
sources assure compliance with SIP limits on PM. Commenters believe
that this role is now filled by EPA's CAM rule at 40 CFR part 64.
    Response 60. EPA's present action is not dependent upon whether the
State's visible emissions rule is the ``primary'' means for evaluating
compliance with PM limits, although that has been and continues to be a
legitimate reason for such opacity limits in SIPs. EPA's present action
is based primarily on its obligation under section 110(l) not to
approve SIP revisions that would interfere with attainment or
maintenance of the NAAQS or other applicable requirements of the CAA.
EPA agrees that the CAM rule provides additional support for evaluation
of

control device operation; however, CAM applicability and methodologies
vary from facility-to-facility. The CAM rule is designed to provide
reasonable assurance of ongoing compliance with applicable emissions
limits, such as the PM emission limits of the SIP. But CAM requirements
are in addition to the requirements of Alabama's visible emissions
rule; as a result, the commenters' statements do not resolve whether
the revisions to the visible emissions rule satisfy section 110(l).

12. Relationship of SIP Revisions to Sierra Club v. EPA, 551 F.3d 1019
(D.C. Cir. 2008), and the Vacatur of Certain Provisions in 40 CFR Part
63

    Comment 61. Commenters explained that the D.C. Circuit Court's
vacatur of 40 CFR part 63 provisions pertaining to SSM and its impact
on the opacity SIP revision are irrelevant. Further, commenters noted
that SSM provisions are not at issue in the instant SIP revision.
    Response 61. EPA does not agree with the blanket statement that SSM
provisions are not at issue in the instant SIP revision. As part of
EPA's 110(l) evaluation, EPA may consider the SIP as a whole--including
other provisions, such as SSM provisions, that may further affect the
consequences of a given SIP revision. In this case, EPA's analysis
focused primarily on the provisions of the visible emissions rule that
the State actually sought to change in the Submittals. However, EPA may
consider the entirety of a rule, and the SIP, in completing a 110(l)
analysis.

13. Relationship of SIP Revisions to Reasonably Available Control
Technology (RACT)

    Comment 62. Commenters explained that the Submittals on opacity are
not required to comply with RACT and that there is no requirement for
EPA to review ``unrelated SIP revisions requests'' for future RACT
compliance. Moreover, commenters stated that when Alabama does submit a
SIP revision to address RACT, EPA is not compelled to require that
revision to establish any particular opacity standard. Another
commenter stated that Alabama's revised SIP imposes the proper opacity
RACT standard. Several commenters noted that the Petitioners will have
separate opportunity to challenge RACT determinations is RACT-specific
rulemaking.
    Response 62. RACT refers to equipment and practices that reduce
pollutant emissions that are reasonably available and both
technologically and economically feasible. RACT usually applies to
existing sources in nonattainment areas. Since EPA has concluded that
this revision is not approvable under section 110(l) for the reasons
already stated, it is not necessary to determine whether Alabama has
relied on opacity limits to meet its RACT obligations.
    Notably, section 172 of the Act, Nonattainment plan provisions in
general, requires nonattainment plans ``shall provide for the
implementation of all reasonably available control measures as
expeditiously as practicable (including such reductions in emissions
from existing sources in the area as may be obtained through the
adoption, at a minimum, of reasonably available control technology) and
shall provide for attainment of the national primary ambient air
quality standards.'' Section 172 requirements, including RACT, are
applicable requirements of the CAA which section 110(l) evaluations may
consider.
    Section 110(l) requires that EPA consider whether the revision at
issue would interfere with the NAAQS, and any other applicable
requirement concerning attainment and RFP. Thus, EPA is authorized to
consider whether the revision would interfere with an area's ability to
comply with RACT or other requirements in the SIP. In this case,
however, EPA's review was primarily focused on interference with the
NAAQS. While some applicable requirements may be subject to separate
SIP revisions, as was noted by several commenters, that does not mean
that EPA is prohibited from considering whether revision of a rule at
issue may implicate another applicable requirement. RACT issues are
likely to also be addressed separately in other SIP revisions.

14. Other Exemptions in Alabama SIP Related to Visible Emissions

    Comment 63. Commenters noted that EPA's final action was not
inconsistent with EPA policies on excess emissions and director's
discretion.
    Response 63. As was previously noted by EPA in the 2007 proposal
and the October 2008, action, the director's discretion provisions
under Alabama rule 335-3-4-.01(1)(c) and (d) are unchanged by the SIP
revisions. As a result, periods of excess emissions allowed in a permit
pursuant to those provisions remain unchanged under Alabama's rules.
EPA did, however, consider Alabama's provisions for excess emissions in
evaluating the rule as a whole and comparing it with the previous EPA-
approved SIP rule. These types of details become relevant, particularly
when parties compare Alabama's visible emissions rules with those in
other states. In this action, EPA is not taking any action on Alabama's
existing SIP-approved rules that implicate director's discretion and
excess emissions.

IV. Final Action

    EPA is taking final action to amend an October 15, 2008, final
rulemaking on two SIP revisions regarding the State of Alabama's rules
for visible emissions from certain stationary sources. EPA has now
determined upon reconsideration that Alabama's SIP revisions, dated
September 11, 2003, and August 22, 2008, are not approvable pursuant to
CAA section 110(l). Accordingly, EPA is now disapproving the revisions
submitted by the State of Alabama on September 11, 2003, and August 22,
2008. As a result of this action, Alabama's visible emissions rule that
was in the SIP prior to the October 15, 2008, final action will be the
``current'' SIP-approved rule. Alabama is urged to undertake rulemaking
in order to conform its SIP-approved rule with its State-effective
rule.

V. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

    This final action has been determined to be a ``significant
regulatory action'' subject to review by the Office of Management and
Budget (OMB) under Executive Order 12866 (58 FR 51735, October 4,
1993). Accordingly, EPA submitted this action to the Office of
Management and Budget (OMB) for review under Executive Order 12866 and
any changes made in response to OMB recommendations have been
documented in the docket for this action.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.,
because these SIP disapprovals under section 110 will not in-and-of
itself create any new information collection burdens but simply
disapproves certain State requirements for inclusion into the SIP.
Burden is defined at 5 CFR 1320.3(b).

C. Regulatory Flexibility Act (RFA)

    The RFA generally requires an agency to conduct a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements unless the agency certifies that the rule will
not have a significant economic impact on a substantial number of small
entities. Small entities include small businesses, small not-for-profit

enterprises, and small governmental jurisdictions. For purposes of
assessing the impacts of today's rule on small entities, small entity
is defined as: (1) A small business as defined by the Small Business
Administration's regulations at 13 CFR 121.201; (2) a small
governmental jurisdiction that is a government of a city, county, town,
school district or special district with a population of less than
50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field. This rule will not have a significant impact on
a substantial number of small entities because EPA understands that
only one small entity will be affected by this rule. Furthermore, even
if additional small entities were affected by this rule, this rule
would not have a significant economic impact on any small entity
because it simply restores a long-standing requirement of the Alabama
SIP concerning visible emissions.
    Therefore, after considering the economic impacts of today's
rulemaking on small entities, I certify that this action will not have
a significant economic impact on a substantial number of small
entities.

D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531-
1538 ``for State, local, or tribal governments or the private sector.''
EPA has determined that the disapproval action does not include a
Federal mandate that may result in estimated costs of $100 million or
more to either State, local, or tribal governments in the aggregate, or
to the private sector. This Federal action determines that pre-existing
requirements under State or local law should not be approved as part of
the Federally approved SIP. It imposes no new requirements.
Accordingly, no additional costs to State, local, or tribal
governments, or to the private sector, result from this action.

E. Executive Order 13132, Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have Federalism implications.''
``Policies that have Federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
    This action does not have Federalism implications. It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132, because it merely disapproves
certain State requirements for inclusion into the SIP and does not
alter the relationship or the distribution of power and
responsibilities established in the CAA. Thus, Executive Order 13132
does not apply to this action.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    This action does not have tribal implications, as specified in
Executive Order 13175 (59 FR 22951, November 9, 2000), because the SIP
EPA is disapproving would not apply in Indian country located in the
State, and EPA notes that it will not impose substantial direct costs
on tribal governments or preempt tribal law. This final rule does not
have tribal implications, as specified in Executive Order 13175. It
will not have substantial direct effects on tribal governments, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes. This action does not involve or impose
any requirements that affect Indian Tribes. Thus, Executive Order 13175
does not apply to this action.

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

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997)
as applying only to those regulatory actions that concern health or
safety risks, such that the analysis required under section 5-501 of
the Executive Order has the potential to influence the regulation. This
action is not subject to Executive Order 13045 because it is not an
economically significant regulatory action based on health or safety
risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997).
This SIP disapproval under section 110 will not in-and-of itself create
any new rules but simply disapproves certain State requirements for
inclusion into the SIP.

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

    This action is not a ``significant energy action'' as defined in
Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not
likely to have a significant adverse effect on the supply,
distribution, or use of energy. We have concluded this rule is not
likely to have a significant adverse effect on the supply, distribution
or use of energy because this rule applies only to 19 facilities in
Alabama and simply restores a long-standing rule concerning visible
emissions.

I. National Technology Transfer and Advancement Act (NTTAA)

    Section 12(d) of the NTTAA of 1995 (NTTAA), Public Law 104-113,
section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary
consensus standards (VCS) in its regulatory activities unless to do so
would be inconsistent with applicable law or otherwise impractical. VCS
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by VCS bodies. NTTAA directs EPA to provide Congress, through
the OMB, explanations when the Agency decides not to use available and
applicable VCS.
    EPA believes that this action is not subject to requirements of
Section 12(d) of NTTAA because application of those requirements would
be inconsistent with the CAA. Today's action does not require the
public to perform activities conducive to the use of VCS.

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

    Executive Order 12898 (59 FR 7629, (February 16, 1994)) establishes
Federal executive policy on environmental justice. Its main provision
directs Federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
    EPA lacks the discretionary authority to address environmental
justice in this action. In reviewing SIP submissions, EPA's role is to
approve or disapprove State choices, based on the criteria of the CAA.
Accordingly, this action merely disapproves certain State requirements
for inclusion into the SIP

under section 110. Accordingly, it does not provide EPA with the
discretionary authority to address, as appropriate, disproportionate
human health or environmental effects, using practicable and legally
permissible methods, under Executive Order 12898.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective May 6, 2011.

L. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by June 6, 2011. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purposes of judicial review nor does
it extend the time within which a petition for judicial review may be
filed, and shall not postpone the effectiveness of such rule or action.
This action may not be challenged later in proceedings to enforce its
requirements. See CAA section 307(b)(2).

List of Subjects in 40 CFR Part 52

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

    Dated: March 29, 2011.
Gwendolyn Keyes Fleming,
Regional Administrator, Region 4.

    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

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

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

Subpart B--Alabama

0
2. Section 52.50(c) is amended by revising the entry for ``Section 335-
3-4-.01'' to read as follows:

Sec.  52.50  Identification of plan.

* * * * *
    (c) * * *

                                                            EPA-Approved Alabama Regulations
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                State
          State citation                Title/subject      effective date             EPA approval date                         Explanation
--------------------------------------------------------------------------------------------------------------------------------------------------------

                                                                      * * * * * * *
Section 335-3-4-.01...............  Visible Emissions....      10/15/1996  4/6/2011 [Insert citation of
                                                                            publication].

                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * *
[FR Doc. 2011-8032 Filed 4-5-11; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 85, Number 133 (Friday, July 10, 2020)]
[Notices]
[Pages 41612-41613]
[FR Doc No: 2020-14900]

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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

[Docket ID FEMA-2007-0008]

National Advisory Council; Meeting

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Committee management; Notice of open Federal Advisory Committee
meeting.

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

SUMMARY: The Federal Emergency Management Agency's National Advisory
Council (NAC) will meet virtually July 29-30, 2020. The meeting will be
open to the public through virtual means.

DATES: The NAC will meet from 2 p.m. to 4 p.m. Eastern Standard Time
(EST) on both Wednesday, July 29, and Thursday, July 30, 2020. Please
note that the meeting may close early if the NAC has completed its
business.

ADDRESSES: The meeting will be held virtually. Anyone who wishes to
participate must register with FEMA prior to the meeting by providing
their name, telephone number, email address, title, and organization to
the person listed in the FOR FURTHER INFORMATION caption below, by
Friday, July 24, 2020.
    To facilitate public participation, members of the public are
invited to provide written comments on the issues to be considered by
the NAC. The topic areas are indicated in SUPPLEMENTARY INFORMATION
caption below. The full agenda and any related documents for this
meeting will be available by Friday, July 24, 2020, by contacting the
person listed in the FOR FURTHER INFORMATION CONTACT caption below.
Written comments must be submitted and received by 5 p.m. EST on
Friday, July 24, 2020, identified by Docket ID FEMA-2007-0008, and
submitted by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
     Fax:<PHONE_NUMBER>. Please include a cover sheet
addressing the fax to ATTN: Jasper Cooke.
    Instructions: All submissions must include the words ``Federal
Emergency Management Agency'' and the docket number for this action.
Comments received, including any personal information provided, will be
posted without alteration at http://www.regulations.gov.
    Docket: For access to the docket to read comments received by the
NAC, go to http://www.regulations.gov, and search for Docket ID FEMA-
2007-0008.
    A public comment period will be held on Thursday, July 30, 2020,
from 2 to 2:15 p.m. EST. All speakers must limit their comments to
three minutes. Comments should be addressed to the NAC. Any comments
not related to the agenda topics will not be considered by the NAC. To
register to make remarks during the public comment period, contact the
person listed in the FOR FURTHER INFORMATION CONTACT caption below by
Friday, July 24, 2020. Please note that the public comment period may
end before the time indicated, following the last call for comments.

FOR FURTHER INFORMATION CONTACT: Jasper Cooke, Designated Federal
Officer, Office of the National Advisory Council, Federal Emergency
Management Agency, 500 C Street SW, Washington, DC 20472-3184,
telephone<PHONE_NUMBER>, fax<PHONE_NUMBER>, and email<EMAIL_ADDRESS>The NAC website is http://www.fema.gov/national-advisory-council.

SUPPLEMENTARY INFORMATION: Notice of this meeting is given under the
Federal Advisory Committee Act, 5 U.S.C. Appendix.
    The NAC advises the FEMA Administrator on all aspects of emergency
management. The NAC incorporates input from State, local, Tribal, and
territorial governments, and the private sector in the development and
revision of FEMA plans and strategies. The NAC includes a cross-section
of officials, emergency managers, and emergency response providers from
State, local, Tribal, and

territorial governments, the private sector, and nongovernmental
organizations.
    Agenda: On Wednesday, July 29, 2020, the NAC will discuss potential
recommendations and receive feedback from leadership on initial work
products, as well as hear about strategic priorities from the FEMA
leadership.
    On Thursday, July 30, 2020, the NAC will engage with industry
experts to receive feedback on initial work products and engage in
discussions about recommendations for direction leading up to the next
NAC meeting.
    The full agenda and any related documents for this meeting will be
available by Friday, July 24, 2020, by contacting the person listed in
the FOR FURTHER INFORMATION CONTACT caption above.

Pete Gaynor,
Administrator, Federal Emergency Management Agency.
[FR Doc. 2020-14900 Filed 7-9-20; 8:45 am]
BILLING CODE 9111-48-P


Tom Helms/ RTP/ USEPA/ US Sent by: Joann Allman 12/ 09/ 2005 10: 16 AM To Arthur_ G._ Fraas@ omb. eop. gov, Amy_ E._ Flynn@ omb. eop. gov cc Jan King/ RTP/ USEPA/ US@ EPA Subject Sign Off or Waive of review on a notice Art/ Amy:

This message was sent earlier, but due to a glitch in our system here at EPA our records do not show that you received the message. I am resending. THANKS This note is to ask your sign off or waive of review on a notice to complete a " lingering NOx SIP call" duty .... securing the final and full budgets from 5 states. We have a Federal Register notice that describes actions that our regions took a couple of months ago to complete our SIP call program. Here's what the notice does.

In this notice, EPA is taking final action making findings, under the Clean Air Act ( CAA), that Indiana, Illinois, Kentucky, Michigan, and Virginia failed to make complete State implementation plan ( SIP) submittals required under the CAA. Under the CAA and Phase II of EPAs nitrogen oxides ( NOx) SIP Call regulations, these States were required to submit SIP measures providing for reductions in the emissions of NOx, an ozone precursor. Normally, this action would trigger an 18 month sanctions clock; however, since the 1 hour ozone standard was revoked on June 15, 2005, sanctions do not apply. This action defines the start of a FIP clock under section 110( c) of the CAA. Recently, EPA sent letters to State officials of the affected States describing the status of the States' effort in completing a Phase II SIP. The letters also noted that we would be publishing findings of failure to submit in the Federal Register. All States are expected to submit a complete SIP well within the CAA deadline.

I am out of the office but if you have questions please contact Jan King at 919/ 541 5665. Thanks.

G. Tom Helms Group Leader, OPSG C 539 02 RTP, NC 27711 919/ 541 5527 919/ 541 0824 ( fax)