Also relevant to factor two, one commenter pointed out that difficulties in obtaining compliance assistance from State agencies will be temporary. In response, EPA notes that even though such difficulties may be temporary, they would come at a critical time for sources and permitting authorities. For example, immediately upon becoming subject to title V, an area source which does not typically have employees trained in such matters, would need to quickly become familiar with the critical and pressing step of completing and submitting a permit application, required under § 70.5 and § 71.5. Since such applications are provided by individual permitting agencies, access to the agency to obtain assistance and guidance on completing the forms will be essential for area sources in order for them to complete and submit them by the mandatory deadline, currently December 9, 2005, in most jurisdictions. See 64 FR 69637, December 14, 1999, ( setting the deadline of December 9, 2004 for deferrals to end). In addition, before applications are distributed to area sources, certain agencies may need to translate forms and other information into foreign languages, which in the EPA's experience, is often needed for small businesses, such as dry cleaners, in large urban communities, but not typically necessary for major sources. [ For example, see a fact sheet developed for dry cleaners in Vietnamese, docket item 96 and the equivalent form in English, docket item 97.] 72 Another commenter thinks the title V costs would not be significant for area sources because they would merely be passed on to consumers. In response, no economic data for these categories of area sources were submitted by the commenter or otherwise available to the EPA to support this point, and any such assertion is entirely speculative.

Costs cannot necessarily be passed on to consumers in highly competitive industries, or where there are highly price responsive consumers. EPA believes that these situations may exist for these sources, and that passing prices on to consumers may, therefore, not be feasible for them. The commenter provided no information on competition in these industries, or on price responsiveness of their consumers to support his assertions.

D. What is our Analysis of Factor Four for the Final Rule?

Commenters opposed to the EPA's reliance on the fourth factor in the proposal,

whether adequate oversight could achieve high compliance with the NESHAP without title V, cited perceived flaws in the State survey ( docket item 02), including that it does not contain representative data, that it has missing data, and that this missing data means that existing compliance with the NESHAP is not high. The proposal explained that information in the docket, including the State survey, shows that many permitting authorities have alternative compliance oversight programs that result in high NESHAP compliance without title V. During the public comment period, the EPA received comments from State and local agencies confirming this point. [ See docket items 11, 16,

59, 61, and 65]. The EPA undertook the survey to collect information we thought would be relevant in our consideration of possible title V exemptions, and we believe State and local agencies made reasonable efforts to complete it. There is no definition for " high" 73 compliance in the Act or EPA regulations, nor did the EPA suggest one to State agencies.

States are primarily responsible for enforcement of the vast majority of Act requirements,

including NESHAP, through delegation of EPA responsibilities, approved State programs,

the SIP process, and other mechanisms, and we give considerable weight to their judgement on questions concerning the compliance status of sources. Moreover, even without such input from States, the EPA would have reached the same conclusion regarding high compliance absent title V because NESHAP are based on section 112 of the Act, which imposes stringent compliance requirements, independent of title V, and because States and EPA have adequate authority and actual implementation and enforcement programs in place sufficient to assure compliance with NESHAP,

independent of title V.

Also concerning factor four of the proposal, one commenter said they believe Congressional intent was that these exemptions would only apply when a reasonable alternative to title V permitting is actually in place and achieving results, specifically citing the 1990 legislative history that the EPA " is authorized to exempt sources from the new permit program if the exemption would be consistent with the Act's purposes. For example, the EPA may exempt certain small but numerous sources from the requirement to obtain a permit if a reasonable alternative is developed." S. Rep. No. 101 228, at 349 ( 1990). In response, the plain wording of the Senate Report is that it is an " example" of a justification for a title V exemption. Title V does not require EPA to develop such alternative programs as a prerequisite to granting exemptions. In any event, as described below, we believe there is existing authority in the Act and actual implementation and 74 enforcement programs in place, as required under section 112, that are sufficient to assure compliance with these NESHAP, and thus, high compliance can be achieved with the NESHAP without title V in all jurisdictions where such sources may reside in the nation.

First. Statutory programs of implementation and enforcement of NESHAP are conducted by EPA under the authority of sections 112, 113, and 114 of the Act, while State and local agencies or tribes may be granted delegation of this responsibility under section 112( l) of the Act ( implemented through subpart E of part 63). The EPA has primary responsibility for implementation and enforcement of all NESHAP under section 112 of the Act in all parts of the nation. Section 112( l) allows EPA to delegate to State or local agencies or tribes certain of its implementation and enforcement duties for NESHAP,

based on a State request to do so, and satisfaction of certain criteria. There are several types of delegations, including " straight delegation," which is adoption of the NESHAP without change, or the delegate agency may establish a program or rules to operate in place of the NESHAP ( a program), provided the program is " no less stringent" than the NESHAP, and the delegate agency has adequate authority and resources to implement and enforce the delegated NESHAP ( under all delegation options). Section 63.91( d) defines criteria that State and local agencies or tribes are required to meet prior to approval of requests for any type of NESHAP delegation, including that the request contain: ( 1)

written findings from the Attorney General ( or General Counsel for local agencies and tribes) that they have certain legal authorities concerning enforcement and compliance, ( 2)

a copy of the State statutes, regulations, and requirements that grant authority for them to implement and enforce the NESHAP, ( 3) a demonstration that they have adequate 75 resources to implement and enforce all aspects of their NESHAP program, except for authorities retained by EPA, and ( 4) a plan that assures expeditious compliance by all sources subject to the program. Also, depending on the type of delegation requested, § §

63.92 through 63.95, and § 62.97 specify additional approval criteria. [ Also, see section 112( l)( 5), and the final rule for subpart E, 58 FR 62262, November 26, 1993, amended by 65 FR 55810, September 14, 2000]. In addition, under section 112( l)( 6) EPA has authority to withdraw its approval of a delegation, or approval of an equivalent program or rule, if the delegate agency is not adequately implementing or enforcing the NESHAP;

and under section 112( l)( 7) EPA may enforce any NESHAP, including those it has delegated. Thus, even if a State does not have adequate authority to implement and enforce any NESHAP in their jurisdiction, EPA does have such authority, consequently,

there can be no gap in implementation and enforcement for NESHAP that apply to area sources in any jurisdiction. [ For example, see EPA's final rule approving the request of Indiana for delegation of all NESHAP for all sources not covered by the State's part 70 program, 62 FR 36460, July 8, 1997, docket item 98.]

Second. The EPA has general authority for enforcement of NESHAP under section 113, including authority to ( 1) issue an order requiring compliance or assessing an administrative penalty; ( 2) bring a civil action seeking to enjoin violations or the assessment of penalties; or ( 3) bring a criminal action to punish knowing violations.

Section 114 allows the EPA to determine if violations have occurred through inspection,

auditing, monitoring, recordkeeping, reporting, and entry onto premises.

Third. All States have established non title V permitting programs, including 76 8 For more on the use of matching grants, see a August 4, 1993 memorandum from John S. Seitz, Director, Office of Air Quality Planning and Standards, U. S. EPA, " Reissuance of Guidance on Agency Review of State Fee Schedules for Operating Permit Programs under Title V," and a July 21. 1994 memorandum from Mary D Nichols, Assistant Administrator for Air and Radiation, U. S. EPA, " Transition to Funding Portions of State and Local Air Programs with Permit Fees Rather than Federal Grants." operating and preconstruction permitting programs for minor sources, under section 110( a)( 2)( C) of the Act. However, the EPA notes that several States have reported that their non title V permits do not currently include NESHAP, so such permits would not always be immediately available for this purpose. Although some State agencies have established permitting programs under State law that include NESHAP for area sources,

some have not, either because they do not have explicit State authority, or they have State authority, but they have chosen to not implement such a program so far. See the State survey ( docket item 02), where States noted that they issue non title V permits for certain of these area sources.

Fourth. All States and EPA are required to establish a small business assistance program ( SBAP) under section 507 of the Act. These programs are required to assist small business with technical and environmental compliance assistance, and they are not limited to title V sources. Any activities for non title V sources conducted by a SBAP may be funded by non title V fees at State option, and EPA matching grants under section 105 of the Act may also be used for this purpose. 8 State SBAP programs are required by section 507 to provide information on compliance methods, to have a small business ombudsman, to provide assistance in determining applicable requirements and permitting requirements under the Act, and to refer sources to compliance auditors, or at State 77 option, provide auditors for small sources. [ For example, see docket item 91, a fact sheet concerning an SBAP implemented by a local air pollution control district.]

Finally. States may have voluntary compliance assistance programs in place for NESHAP requirements, such as the environmental results programs ( ERP) or other similar programs. The EPA has encouraged States to adopt voluntary programs in the past, and the ERP, in particular, has been successful in assisting small sources with compliance in fourteen States across nine business dominated sectors, including dry cleaners in Massachusetts and Michigan. See 70 FR 15260. In addition to the State survey, which includes information concerning State permitting programs, inspection, and compliance assistance programs, several permitting agencies submitted comments to describe their alternative programs for non title V sources in additional detail. [ See State and local comments, docket items 11, 16, 59, 61, and 65.] Importantly, no comments were received from State agencies saying that they would not be able to ensure compliance for these area sources if we promulgate title V exemptions for them.

E. Are these Exemptions Consistent with the Legislative History of The Act?

Several commenters expressed concern that exemptions from title V would adversely affect public health, welfare, or the environment by weakening air quality standards, increasing HAP emissions, and by increasing morbidity in human populations,

and that this would be inconsistent with the legislative history of section 502( a).

In response, section 112 of the Act, which authorizes NESHAP, is the primary vehicle under the Act for HAP reduction, not title V. See sections 112( b)( 2), 112( c)( 3),

112( d), 112( f), and 112( k) of the Act. For an overview of the EPA's national effort to 78 regulate air toxics under section 112, see a July 19, 1999 notice ( 64 FR 38705), which includes a description of the EPA's integrated urban air toxics strategy, a strategy to address public health risks posed by air toxics from the large number of smaller area sources in urban areas. Today's rulemaking is not exempting any area sources from any section 112 requirements, such as those described in the July 19 notice, and section 112 gives the EPA, or its delegate agency, responsibility to implement and enforce section 112 standards, independent of title V. Thus, consistent with the legislative history and the EPA's analysis for each category of area sources addressed in this rulemaking, title V exemptions for these particular area sources will not thwart or in any way interfere with the implementation and enforcement of section 112 of the Act, and today's action should not adversely affect public health.

The EPA does not believe HAP increases will occur from title V exemptions for these area sources. The Act does not require emission reductions through title V permits.

As we explained in the proposal ( 70 FR 15255), the EPA's outreach in recent years has shown that several State agencies believe, in their experience, implementing emissions standards for area sources through permits did not result in increased compliance with the emissions standards. EPA has evaluated the extent to which title V could improve compliance for these NESHAP, and EPA believes that successful implementation at such sources is better achieved through compliance assistance efforts, such as compliance outreach and education programs, rather than title V permits.

One commenter asserted that title V permitting will not divert resources from more significant sources because the Act requires State and local agencies to charge 79 adequate fees to cover the costs of the title V program, including the costs of small business assistance programs under section 507 of the Act, and adequate personnel to administer the program, and because fees may be reduced for small sources. This commenter apparently was taking issue with EPA's statement in the proposal that " requiring permitting of area sources will likely cause, at least in the first few years of implementation, permitting authorities to shift resources away from assuring compliance for major sources with existing permits to issuing new permits for area sources. This has the potential, at least temporarily, to reduce the overall effectiveness of the States' title V permit programs, which could potentially adversely affect public health, welfare, or the environment." In response, EPA notes that there are practical limitations on the ability of State agencies, tribes, and EPA to increase fees and provide additional resources for title V implementation, especially in a relatively short period of time. As we described in the proposal ( 70 FR 15255), in many States, fee increases must typically be approved by the State legislature within the State budget process, and this may lead to significant delays in implementing new fee schedules to meet new title V demands. This limitation could lead to significant, albeit temporary, impairment of the title V program for major sources, given the large workload a requirement to permit these area sources would impose on State agencies. For example, if all these area sources were required to be permitted, up to 38,000 title V permit applications would be due by December 9, 2005, and title V permits for these sources would have to be issued or denied within 18 months of receipt of the applications, as required by section 503( a) and 503( c) of the Act.

F. Is it Reasonable for EPA to Rely on the Information Cited in Support of the Proposal? 80 Several commenters complained about the information EPA collected to support the findings of the proposal, particularly the State survey, concluding that it was so flawed that the findings are arbitrary and capricious under the APA or otherwise inconsistent with administrative rulemaking requirements. We disagree. In developing the proposal, EPA sought and relied on information from State agencies on the level of oversight and compliance rates for the area sources addressed in today's proposal. The results are summarized for each category of area sources in the State survey ( docket item 02). The EPA also sought input from State small business ombudsmen and several trade associations, and they responded with information on the area sources and compliance assistance programs currently available to them. This information is also in the docket.

See docket items 03, 06, and 08.

We have collected information we believe is useful and appropriate under the statute to establish a rational basis for evaluating whether the area sources addressed in today's rule satisfy the exemption criteria of section 502( a) of the Act. We summarized our outreach efforts and we collected cost and economic data, which we placed in the docket prior to the proposal. We considered all information available to us for this rulemaking, including that submitted during the public comment period, in making our exemption findings. Also see section X below for additional discussion of how this rulemaking satisfies administrative rulemaking requirements.

As to comments that the State survey is not complete, we believe much of the missing information can be explained by two factors: ( 1) State agency participation was voluntary, and ( 2) some States have more or less of these area sources, so experience with 81 them varies. We did not base our decisions on missing data but on the data we have and our judgement as air quality experts, and we did not assume any particular meaning for missing data. Commenters had an opportunity to submit what they consider to be more complete or accurate information on compliance rates and the oversight activities of State agencies for these area sources during the comment period, but they did not do so.

Also, concerning information on burdens and costs of title V, for the current ICR,

we provided the public with our draft analysis of burdens and costs under title V, including for general permits, and we received no comments.

G. Are Permits Necessary to Define Monitoring for Chrome Electroplaters?

One commenter stated that the monitoring requirements of the chrome electroplating NESHAP vary based on the type of control technique employed and the range of acceptable values, or a minimum and maximum, for each monitoring parameter at each area source, and that it would be useful for the public, regulatory agencies, and the source for its specific obligations to be spelled out in a permit.

The chrome electroplating NESHAP has extensive requirements for monitoring,

recordkeeping, and reporting, including for monitoring system performance tests, and a written report to document the results of the performance test, which will document the monitoring techniques employed and the parameter ranges that show compliance. The NESHAP requires the source to conduct the performance tests needed to define the monitoring parameters that assure compliance by the source with its emissions limitations or standards, and this report is submitted to EPA or a delegate agency with such responsibilities, as defined at § 63.347( f), so neither the source or the regulatory agency 82 will be confused about the specific monitoring that applies to area sources, absent a title V permit. Also, there is independent authority for public disclosure of information related to compliance with NESHAP under section 114( c) of the Act, which does not rely on title V for implementation. Public disclosure authority under section 114( c) of the Act extends to all information collected under NESHAP, even information required to be kept on site,

rather than submitted directly, except for trade secrets which may not be released to the public. Thus, if a member of the public wants information on compliance with the NESHAP, he or she may get it from the agency responsible for implementation and enforcement of the NESHAP ( either EPA, or the State or local agency, or tribe), whether there is a title V permit or not. In addition, State or local agencies, or tribes, are required to submit, as part of their delegation request, a written finding by the State Attorney General ( or General Counsel for local agencies and tribes) that the State has legal authority " to request information from regulated sources regarding their compliance status," under § 63.91( d)( 3)( i)( B), and legal authority " to inspect sources and any records required to determine a source's compliance status," under § 63.91( d)( 3)( i)( C).

Therefore, title V is not necessary for State and local authorities to obtain compliance information from regulated sources. While it is helpful for the public, regulatory agencies,

and the source for the specific requirements to be defined in a permit, we do not believe it is necessary for adequate compliance to occur, and we believe we have shown in today's final rule that title V would be unnecessarily burdensome on these area sources.

H. May Degreasers be Exempted when there are Multiple Applicable Requirements?

One commenter supports an exemption for degreasers, but only when they are not 83 subject to other applicable requirements. They think the compliance requirements of the NESHAP will be substantially equivalent to title V only when the source is subject to only this NESHAP and the source is not subject to other NESHAP. In response, the EPA does not agree with this comment for the following reasons. First, there are cases where more than one NESHAP applies to degreasers, for example, where a degreaser is located at a chrome electroplater, but the requirements of the chrome electroplating and degreasing NESHAP do not significantly overlap for the emission units at such facilities, so this would not present a significant problem of complexity that would justify the burdens associated with issuing title V permits for such sources. Second, such concerns are largely offset by the relative simplicity of the emission control requirements of the degreaser NESHAP, which involves primarily work practice standards. For example, lids are required to be kept on containers at all times when not in use. Third, because degreasers are often collocated with major sources, as an adjunct to the primary activity occurring at the major source, many degreasers will be included in the major source permit for the collocated major source. This is so because, as we have clarified elsewhere in this preamble, major source permits must include all applicable requirements, and these exemptions are only for title V requirements at area sources.

I. Are the Compliance Requirements of the EO Sterilizer and Secondary Aluminum NESHAP Substantially Equivalent to Title V?

One commenter opined that the compliance requirements of the EO sterilizer and secondary aluminum NESHAP are not substantially equivalent to the compliance requirements of title V with respect to our analysis of factor one for area sources subject 84 to these NESHAP because the EPA has no data to show how many sources employ continuous monitoring methods, and even if continuous methods are used, the reporting is not equivalent to title V reporting. Also, the commenter pointed out that the EO sterilizer and secondary aluminum NESHAP do not require an annual compliance certification ( as does title V), and that this is another reason why the compliance requirements of the NESHAP and title V are not substantially equivalent as EPA proposed. Also, responding to a specific request of the proposal for input on the value of annual compliance certifications and the threat of enforcement for false certification for area sources subject to these NESHAP, the commenter said that completing a compliance certification will be important in bringing about better compliance because the act of signing one is not taken lightly and will produce positive results, including greater compliance efforts, and the submittal of more compliance plans.

In the proposal, we compared the compliance requirements of the EO sterilizer and secondary aluminum NESHAP with those of title V, and we stated for both that the recordkeeping and reporting requirements are substantially equivalent ( the first factor),

when sources employ continuous monitoring methods to assure proper operation and maintenance of control equipment, such as when sources use thermal oxidizers for emission controls. Also, we said that sources that use scrubbers as emission controls under both of these NESHAP employ noncontinuous monitoring methods, and thus, the recordkeeping and reporting requirements for them would not be substantially equivalent to the compliance requirements of title V. Although we were not certain of the number of area sources that employ continuous monitoring methods under either of the two 85 NESHAP, we stated a belief that most sources would employ such methods, and we asked for comment on the percentage of sources that employ them. See the March 25, 2005 proposal's discussion of EO sterilizers ( 70 FR 15256) and secondary aluminum ( 70 FR 15258).

For the final rule, we reviewed the EO sterilizer or and secondary aluminum NESHAP once again, and we now conclude that sources with scrubbers are required to conduct " continuous" monitoring under the NESHAP. Also, both of these NESHAP require sources that conduct " continuous" monitoring to submit excess emissions and continuous monitoring system performance report and summary reports to assess their compliance status on a semiannual basis, consistent with § 63.10( e)( 3). These NESHAP require these reports for sources that use scrubbers for emissions controls, the same as they require them for sources that use thermal oxidizers as emissions controls. Under the two NESHAP, these reports provides compliance information that is substantially equivalent to the requirements of § § 70.6( a)( 3)( iii) and 71.6( a)( 3)( iii) for deviation reports and six month monitoring reports ( see explanation below). [ Also, see discussion of factor one for these area sources in sections IV. A, IV. E and IV. F, and more on why title V monitoring and the monitoring in these NESHAP are equivalent in section VIII. E.]

The compliance information already required to be reported by these two NESHAP is substantial, and similar to that required in annual compliance certifications under title V [ see § § 70.6( c)( 5) and 71.6( c)( 5)]. Also, the compliance reports required by the two NESHAP require certification by a responsible official, which is defined similarly in the two programs [ see § 63.2, and § § 70.2 and 71.2]. For these reasons, we conclude 86 that the lack of an annual compliance certification report under title V will not have a significant impact on compliance for these NESHAP.

Also, in response to the comment that the act of signing the compliance certifications is valuable because it produces positive compliance results and that these results will be lost if we exempt these area sources from title V, we disagree that the title V exemptions will have this effect for these NESHAP. We conclude this in today's final rule because the EO sterilizer and secondary aluminum NESHAP both require the excess emissions and continuous monitoring system performance report and summary reports ( described above) to be certified by a responsible official, similar to how this is done for title V. [ See the requirements for certification by responsible official of § 63.363( a)( 3) for EO sterilizers and § 63.10( e)( 3)( v) for secondary aluminum.]

In the final rule, we conclude that the overall differences in compliance requirements, after considering all monitoring, recordkeeping, and reporting requirements,

including the lack of annual compliance certification, are not great enough to have a significant impact on compliance for the EO sterilizer and secondary aluminum NESHAP,

and we conclude that the compliance requirements of the NESHAP and title V rules are substantially equivalent. Thus, our analysis of factor one for the final rule is that it supports that title V is " unnecessary" for compliance for area sources subject to the EO sterilizer and secondary aluminum NESHAP, consistent with the " unnecessarily burdensome" criterion of section 502( a) of the Act.

J. Are the Proposed Revisions to EO Sterilizer NESHAP Appropriate?

Several commenters were concerned that the proposed revision to § 63.360( f) 87 9 U. S. EPA, Office of Air Quality Planning and Standards, EPA 456/ R 97 004, September 1997 ( Updated March 2004), Ethylene Oxide Commercial Sterilization and Fumigation Operations NESHAP Implementation Document. would redefine what an " area source" is under the EO sterilizer NESHAP, resulting in fewer area sources. Also, they stated that the proposed rule change is inconsistent with the definition of " major source" and " area source" in section 112 of the Act, and that it contradicts the proposed wording of Table 1 of § 63.360, which exempts " area sources"

regardless of EO usage. Another commenter recommended that the rule language be revised to be consistent with parallel rule language for other subparts, which refers to " area sources."

In the final rule, § 63.360( f) has been revised to specify that exemptions from title V are for " area sources," rather than " sources using less than 10 tons [ of EO]," as we proposed. The intent of the proposal was to exempt area sources subject to the NESHAP from title V, not to change the applicability of the NESHAP. The EPA's March 2004 implementation guidance for this NESHAP ( docket item 88) is clear that the definition of " area source" is the definition of § 63.2, which is based on actual emissions or potential to emit, and this definition should be used for title V purposes under the NESHAP. 9 Also,

the guidance explains that usage of EO is the basis for applicability of the emission standards for various types of vents, under the NESHAP. Nevertheless, we are changing the rule language today to clarify that " area sources" subject to this standard are exempted from title V, and this change will not affect the NESHAP requirements that apply to any existing sources. With this change, § 63.360( f) is now also consistent with Table 1 of §

63.360, in the same subpart, and with the rule language of subparts M, N, T and RRR, 88 that also refers to " area sources."

K. Are Title V Permits Allowed for Area Sources Exempted from Title V?

Several commenters disagreed with the EPA's proposed approach of not allowing permitting authorities to issue title V permits to area sources that EPA has exempted from title V. These commenters did not agree with EPA's proposed reading of section 502( a),

506( a), and 116 of the Act as requiring this result. Also, they did not agree that existing title V permits for such sources should be terminated, suspended, or revoked after exemptions from title V take effect.

Several commenters opined that EPA's proposed approach is inconsistent with section 502( a) of the Act. The proposal explains that Section 502( a) of the Act grants the Administrator alone discretion to define the universe of area sources subject to title V. It follows that once the EPA exempts area sources through rulemaking, they may not be permitted under title V. No other provision of the Act is more specific on this matter than section 502( a). An existing title V permit for an area source that has been exempted from title V must be revoked, terminated, or denied because the permit would otherwise conflict with the NESHAP, which specifically exempts the source from title V ( see section III. A above for explanation of the revisions to the five NESHAP to exempt these area sources from title V). This is different from the more typical case where a title V permit may contain a material mistake or other conflict with the applicable requirement that can be cured through correction of the permit. In this case, the only way to cure the conflict is to take an action to eliminate the permit. We also believe allowing issuance of title V permits for area sources we have exempted would be an obstacle to the implementation of 89 title V both because of the confusion and frustration such a situation would cause for the area sources, based on the common sense meaning of the term " exemption," and because State efforts at title V permitting would be better spent addressing major sources and nonexempt area sources.

Several commenters were concerned that EPA's interpretation of section 502( a) of the Act is illegal because it conflicts with section 506( a), which allows States to have " additional permitting requirements not inconsistent with this chapter." In light of the structure of section 502( a), EPA believes that section 506( a) is best read as allowing States to establish additional permitting requirements for sources that are already subject to title V permitting. Thus, under the EPA's interpretation, there is no conflict between the two sections because section 502( a) of the Act defines what sources must get a permit,

while section 506( a) of the Act allows States flexibility in establishing permit requirements for sources properly subject to the program.

Several commenters stated that EPA's proposed reading of section 502( a) is illegal because it conflicts with section 116, which allows States to issue title V permits to exempted area sources. We explained in the proposal that section 116 of the Act allows State agencies to issue non title V permits to area sources that have been exempted from,

or are outside the scope of, the title V program. However, even if the Act were ambiguous in this regard, EPA would exercise its discretion in interpreting the Act to reach the same result. The EPA would do so to avoid confusion for area sources, as described above, and to achieve the policy benefits associated with having States direct their title V efforts to major sources and non exempt area sources addressing sources that 90 will derive a significant benefit from title V permitting.

L. Does this Rulemaking Disregard Cost Estimates for General Permits?

Several commenters were concerned that we disregarded prior estimates of title V costs for general permits and they believe that these estimates show that title V costs would be sufficiently low that title V would not be " unnecessarily burdensome" for the area sources addressed in the proposal.

In the discussion of burdens and cost of title V permitting in the proposal ( section II. A of the proposal), we stated that we did not have specific estimates for the burdens and costs associated with general permits for sources, but we described certain source activities associated with the part 70 and 71 rules that would apply to sources, whether they have a general or standard permit. Also, in section III of the proposal we said that general permits would reduce burdens to some extent for area sources but that the potential burden and cost reductions would not be sufficient to alter our findings that title V would be significant for area sources. To explain this last point in more detail in the proposal, we reviewed each of the four factors we used in our exemption analysis with respect to general permits, and we concluded that title V will be " unnecessarily burdensome" for area sources that are issued general permits, rather than standard permits. ( See 70 FR 15254 and 15258 15259.)

One commenter pointed to a regulatory impact analysis ( RIA) for operating permits issued in 1992, saying we should have used the estimate of $ 154 per year in that document in analyzing the costs associated with general permits. In response, the RIA ( Regulatory Impact Analyses and Regulatory Flexibility Act Screening for Operating 91 Permits Regulations, U. S. EPA, Office of Air Quality Planning and Standards, EPA

450/ 2 91 011, June 1992) did contain an estimate of $ 154 for the total annual costs for general permits, but it is inaccurate and outdated because it was not based on actual implementation experience, such as the cost estimates contained in the more recent 2004 ICR, which is based on actual implementation experience, and which suggests significantly higher costs for general permits, on the order of half the cost of standard permits ( see more on the 2004 ICR below). The part 70 rule was not effective until July 21 1992, and consequently, no State title V programs were approved until December of 1994, and no part 70 permits were issued in any jurisdiction until late 1996. [ Also, the part 71 rule was not effective until July 31, 1996].

One commenter said we disregarded information in the current ICR for part 70 ( issued in 2004), including " re application of general permits" at 2 burden hours for each title V source with a general permit, compared to the estimate of " permit renewal" at 200 burden hours for each title V source with a standard permit, which they believe shows that title V costs for area sources with general permits would not be significant ( thus, not " burdensome" for them). In response, it was an oversight for us to rely on the 2000 ICR for part 70, when an updated one, the 2004 ICR, was available; however, the 2004 ICR does not support the commenter's claim that title V costs would not be significant for these area sources. We referenced the 2000 ICR in our proposal as indicating an average title V cost of $ 7,700 per source per year, and noted that there were no specific estimates for general permits. Similarly, the 2004 ICR indicates an average title V cost of $ 7,300 per source per year, and, although it contains specific estimates of title V costs for certain 92 activities required for sources with general permits, it does not provide specific estimates of title V costs for all activities that would occur for such sources. For example, the 2004 ICR lists twelve different activities that title V sources would experience ( see table 2,

average source burden by activity, page 16). The ICR lists all activities that may apply to a typically source, not all that will necessarily apply to every source. For example, there are burden hour estimates for three different types of permit revisions, but not all sources may need any of these permit revision in any given year. The commenter is correct that the activity of " re application of general permits" at 2 burden hours per year would only apply to sources with general permits, and that another activity, " permit renewal" at 200 burden hour per year, would only apply to sources with standard permits. Both of these activities reflect the requirements of title V for sources to prepare permit applications for permit renewals, which for general permits, may be streamlined, compared to standard permits. [ See § 70.6( d)( 2), which allows applications for general permits, including permit renewal applications, to " deviate from the requirements of § 70.5," which applies for standard permits.] However, title V sources are subject to many other activities the commenter did not acknowledge. For example, another activity listed in the table,

" prepare monitoring reports" at 80 hours per source per year, would apply to sources with general permits and standard permits. [ See the assumption section of the ICR ( page 36),

which specifies that "[ a] ll sources with issued permits ( including those covered by general permits) will report monitoring data semi annually and compliance certifications annually."] Also, the 2004 ICR is silent with respect whether the remaining activities in the table would be required of sources with general permits, but many of them would 93 apply to such sources because § 70.6( d) requires general permits to " comply with all requirements applicable to other part 70 permits." Certain of these remaining activities may be streamlined or simplified for sources with general permits, compared to sources with standard permits, but the ICR does not provide different burden hour estimates to acknowledge these differences. For example, sources with general permits would have to prepare an initial permit application when they apply for coverage under the general permit, consistent with § 70.6( d)( 2), but the ICR lists the activity of " prepare application"

at 300 hours per source per year, without estimating the potential reduction in burdens and costs that may occur through streamlined permit applications for general permits.

Although the information in the 2004 ICR is more detailed, our analysis for the final rule results in the same conclusion as our review of the 2000 ICR for the proposal: That title V costs would be somewhat lower for sources with general permits, compared to sources with standard permits. Thus, the view of the commenter that title V costs would not be significant for area sources with general permits is not supported by the 2004 ICR.

Another commenter criticized our reference in the proposal of the $ 7,700 average cost estimate for title V sources, taken from the 2000 ICR, because that value reflects an average from among all sources, including the biggest industrial facilities in the country,

and the costs to a smaller source obtaining either an individual or general permit should be less. In response, EPA agrees that costs for area sources are likely to be lower than the average cost of issuing all title V permits to all sources, for the reasons indicated by the commenter. EPA referenced the average cost of title V for all sources in the proposal because the cost estimates of the ICRs are the best estimates of title V costs available, 94 even though they suffer from the limitations noted by the commenter. EPA's assessment of costs and burdens of title V for area sources covered by today's rule assumed that costs would be lower than the average for all sources, but still significant in light of the characteristics of the area sources. The 2004 ICR estimates average annual title V costs for all sources at $ 7,300, and it also does not provide all the information one would need to determine specific costs for area sources, whether they have general or standard permits.

Each ICR developed by EPA is based on the best information available to the Agency at the time it is prepared, such that more realistic estimates of burdens and costs for title V sources in general would be found in more recent ICRs, as implementation experience is gained. In addition, each ICR is approved by OMB for a set period of time in the future ( typically three years), until the next ICR is approved, or the current ICR is extended.

EPA relied to some extent on the information in the ICRs for this rulemaking because it is the best information available on title V burdens and costs and no one submitted any better information to analyze title V burdens and costs for these area sources. EPA has conducted outreach and provided a 60 day public comment period to collect information on the costs and burdens for these sources for this rulemaking, and we provided a similar opportunity for the current ICR. No one submitted, or cited to, any more accurate and complete cost estimates for general permits under title V than those available to EPA. See the notice of March 23, 2004 ( 69 FR 13524) soliciting comment on the current ICR ( Attachment 1 of the current ICR). 95 IX. Effective Date of Today's Final Rule under the Administrative Procedure Act Section 553( d) of the Administrative Procedure Act ( APA) generally provides that rules may not take effect earlier than 30 days after they are published in the Federal Register. However, section 553( d)( 1) of the APA, provides that a substantive rule which grants or recognizes an exemption or relieves a restriction, may take effect earlier.

Today's final rule grants an exemption from title V permitting requirements for a large number of area sources, so we make this final rule effective immediately.

X. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review Under Executive Order 12866 ( 58 FR 51735, October 4, 1993), we must determine whether a regulatory action is " significant" and therefore subject to Office of Management and Budget ( OMB) review and the requirements of the Executive Order.

The Order defines a " significant regulatory action" as one that is likely to result in a rule that may:

1. Have an annual effect on the economy of $ 100 million or more, adversely affecting in a material way the economy, a sector of the economy, productivity,

competition, jobs, the environment, public health or safety in State, local, or tribal governments or communities;

2. Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

3. Materially alter the budgetary impact of entitlement, grants, user fees, or loan programs of the rights and obligations of recipients thereof; or 96 4. Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

Under Executive Order 12866, it has been determined that this rule is a " significant regulatory action" because it raises important legal and policy issues. As such, this rule was submitted to OMB for review. Because this rule exempts area sources that would be subject to title V requirements absent this final rule, this final rule reduces burdens on area sources, and thus it is not economically significant. Also, area sources subject to the secondary lead NESHAP are already subject to title V ( since their earlier deferral has expired) and this final rule does not change this, so this final rule does not change burdens for them. The final rule does not impose any burdens and therefore a detailed economic analysis is unnecessary.

B. Paperwork Reduction Act This action does not impose any new information collection burden. Instead, it reduces such burdens by exempting a large number of area sources from title V requirements. However, the information collection requirements in the existing regulations ( parts 70 and 71) were previously approved by OMB under the requirements of the Paperwork Reduction Act, 44 U. S. C. 3501 et seq. The existing ICR for part 70 is assigned EPA ICR number 1587.06 and OMB control number 2060 0243; for part 71, the EPA ICR number is 1713.05 and the OMB control number is 2060 0336. A copy of the OMB approved Information Collection Request ( ICR) may be obtained from Susan Auby,

Collection Strategies Division; U. S. Environmental Protection Agency ( 2822T); 1200 Pennsylvania Ave., NW, Washington, DC 20004 or by calling ( 202) 566 1672. Burden 97 means the total time, effort, or financial resources expended by persons to generate,

maintain, retain, or disclose or provide information to or for a federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information;

search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.

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 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 that meets the Small Business Administration size standards for small businesses found in 13 CFR 121.201; ( 2) a small governmental jurisdiction that is a government of a city, country, town, school district, or special district 98 with a population of less than 50,000; and ( 3) a small organization that is any not

forprofit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of today's final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities, since the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives " which minimize any significant economic impact of the rule on small entities." 5 USC 603 and 604. Thus, an agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule.

This rule reduces economic impacts on small entities by exempting certain categories of " non major" industrial sources from the permitting requirements under title V of the Clean Air Act ( Act). These sources tend to be smaller businesses and there are estimated at up to 38,000 small entities. They are currently subject to title V permitting ( 40 CFR parts 70 and 71) under previous rulemaking actions, and they will remain subject to these requirements until we exempt them. We have therefore concluded that today's final rule will relieve regulatory burden for these affected small entities.

D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 ( UMRA), Public Law 104 99 4, establishes requirements for federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost benefit analysis, for proposed and final rules with " federal mandates" that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $ 100 million or more in any one year. Before promulgating a rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly,

most cost effective or least burdensome alternative that achieves the objectives of the rule.

The provisions of section 205 do not apply where they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the leastcostly most cost effective, or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, EPA must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of our regulatory proposals with significant federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

Today's rule contains no federal mandates under the regulatory provisions of title II of the UMRA for State, local, or tribal governments or the private sector. Today's final 100 rule imposes no enforceable duty on any State, local or tribal governments or the private sector. This final rule exempts a large number of sources from title V operating permit programs, which will reduce the duties government entities with title V programs would be required to perform and it will remove the requirement for many private sector entities to obtain operating permits under title V programs. Therefore, today's action is not subject to the requirements of sections 202 and 205 of the UMRA.

In addition, EPA has determined that this final rule contains no regulatory requirements that might significantly or uniquely affect small governments. This final rule exempts a large number of area sources from the requirement to obtain operating permits under title V. As such it also removes the requirements for small governments with approved operating permit programs to issue permits to those area sources. Therefore,

today's final rule is not subject to the requirements of section 203 of the UMRA.

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, or on the distribution of power and responsibilities among the various levels of government."

This final rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of 101 government, as specified in Executive Order 13132. Today's rule will not impose any new requirements under title V of the Clean Air Act, and it will not affect the ability of States to issue non title V permits to these area sources, if they so choose. Accordingly, it will not substantially alter the overall relationship or distribution of powers between governments for the part 70 and part 71 operating permits programs. Thus, Executive Order 13132 does not apply to this final rule.

F. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments Executive Order 13175, " Consultation and Coordination with Indian Tribal Governments ( 65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure " meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications." " Policies that have tribal implications" is defined in the Executive Order to include regulations that have " substantial direct effects on one or more Indian tribes, on the relationship between the federal government and the Indian tribes, or on the distribution of power and responsibilities between the federal government and Indian tribes."

This final rule does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, 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, as specified in Executive Order 13175.

Today's action does not significantly or uniquely affect the communities of Indian tribal governments. As discussed above, today's action imposes no new requirements on Indian 102 tribal governments under title V of the Clean Air Act. Accordingly, the requirements of Executive Order 13175 do not apply to this rule.

G. Executive Order 13045: Protection of Children from Environmental Health Risks and Safety Risks Executive Order 13045, " Protection of Children from Environmental Health Risks and Safety Risks" ( 62 FR 19885, April 23, 1997), applies to any rule that: ( 1) is determined to be " economically significant" as defined under Executive Order 12866, and ( 2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

This final rule is not subject to the Executive Order because it is not economically significant as defined in Executive Order 12866 and because the Agency does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. The Agency does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children because, as we describe in detail in section VIII. E of this final rule, it will not adversely affect public health, welfare, or the environment by weakening air quality standards, increasing HAP emissions, and by increasing morbidity in human populations.

H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use 103 This final rule is not a " significant energy action," as defined in Executive Order 13211, " Actions Concerning Regulations That Significantly Affect Energy Supply,

Distribution, or Use" ( 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. This final rule exempts a large number of small sources from the obligation to obtain an operating permit under title V of the Clean Air Act and is not likely to have any adverse energy effects.

I. National Technology Transfer and Advancement Act Section 12( d) of the National Technology Transfer and Advancement Act of 1995 ( NTTAA), Public Law No. 104 113, Section 12( d) ( 15 U. S. C. 272 note), directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e. g., materials specifications, test methods, sampling procedures,

and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

The NTTAA does not apply to this final rule because it does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.

J. 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 104 of the United States. We 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 [ insert date of publication in the Federal Register].

List of Subjects 40 CFR Part 63 Administrative practice and procedure, Air pollution control, Hazardous substances, Intergovernmental relations, Reporting and recordkeeping requirements.

40 CFR Part 70 Administrative practice and procedure, Air pollution control, Intergovernmental relations, Reporting and recordkeeping requirements. 105 40 CFR Part 71 Administrative practice and procedure, Air pollution control, Reporting and recordkeeping requirements.

__________________________________

Dated: November __, 2005.

__________________________________

Stephen L. Johnson, Administrator. 106 For the reasons set out in the preamble, title 40, chapter I of the Code of Federal Regulations is amended as set forth below.

PART 63   [ AMENDED]

1. The authority citation for part 63 continues to read as follows:

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

Subpart M   [ Amended]

2. Section 63.320 is amended by revising paragraph ( k) to read as follows:

§ 63.320 Applicability.

* * * * *

( k) If you are an owner or operator of an area source subject to this subpart, you are exempt from the obligation to obtain a permit under 40 CFR part 70 or 71, provided you are not required to obtain a permit under 40 CFR 70.3( a) or 71.3( a) for a reason other than your status as an area source under this subpart. Notwithstanding the previous sentence, you must continue to comply with the provisions of this subpart applicable to area sources.

Subpart N   [ Amended]

3. Section 63.340 is amended by revising paragraph ( e) to read as follows:

§ 63.340 Applicability and designation of source.

* * * * *

( e) If you are an owner or operator of an area source subject to this subpart, you are exempt from the obligation to obtain a permit under 40 CFR part 70 or 71, provided you are not required to obtain a permit under 40 CFR 70.3( a) or 71.3( a) for a reason 107 other than your status as an area source under this subpart. Notwithstanding the previous sentence, you must continue to comply with the provisions of this subpart applicable to area sources.

4. Table 1 to Subpart N is amended by revising the entry for § 63.1( c)( 2) to read as follows:

Table 1 to Subpart N of Part 63  General Provisions Applicability to Subpart N General provisions reference Applies to subpart N Comment * * * * * * *

§ 63.1( c)( 2).............................. Yes............... § 63.340( e) of Subpart N exempts area sources from the obligation to obtain Title V operating permits.

* * * * * * *

Subpart O   [ Amended]

5. Section 63.360 is amended by:

a. Revising the entry for § 63.1( c)( 2) in Table 1; and b. Revising paragraph ( f).

The revisions read as follows:

§ 63.360 Applicability.

* * * * * 108 Table 1 of Section 63.360  General Provisions Applicability to Subpart O Reference Applies to sources using 10 tons in subpart O* Applies to sources using 1 to 10 tons in subpart O* Comment * * * * * * *

63.1( c)( 2) ....... Yes § 63.360( f) exempts area sources subject to this subpart from the obligation to obtain Title V operating permits.

* * * * * * *

* * * * *

( f) If you are an owner or operator of an area source subject to this subpart, you are exempt from the obligation to obtain a permit under 40 CFR part 70 or 71, provided you are not required to obtain a permit under 40 CFR 70.3( a) or 71.3( a) for a reason other than your status as an area source under this subpart. Notwithstanding the previous sentence, you must continue to comply with the provisions of this subpart applicable to area sources.

* * * * *

Subpart T   [ Amended]

6. Section 63.460 is amended by adding paragraph ( h) to read as follows:

§ 63.460 Applicability and designation of source.

* * * * *

( h) If you are an owner or operator of an area source subject to this subpart, you are exempt from the obligation to obtain a permit under 40 CFR part 70 or 71, provided 109 you are not required to obtain a permit under 40 CFR 70.3( a) or 71.3( a) for a reason other than your status as an area source under this subpart. Notwithstanding the previous sentence, you must continue to comply with the provisions of this subpart applicable to area sources.

§ 63.468  [ Amended]

7. Section 63.468 is amended by removing and reserving paragraph ( j).

8. Appendix B to Subpart T is amended by revising the entry for § 63.1( c)( 2) to read as follows:

Appendix B to Subpart T of Part 63  General Provisions Applicability to Subpart T Reference Applies to subpart T Comment BCC BVI * * * * * * *

§ 63.1( c)( 2)....... . Yes................... . Yes................ .. Subpart T, § 63.460( h) exempts area sources subject to this subpart from the obligation to obtain Title V operating permits.

* * * * * * *

Subpart RRR   [ Amended]

9. Section 63.1500 is amended by revising paragraph ( e) to read as follows:

§ 63.1500 Applicability.

* * * * *

( e) If you are an owner or operator of an area source subject to this subpart, you are exempt from the obligation to obtain a permit under 40 CFR part 70 or 71, provided 110 you are not required to obtain a permit under 40 CFR 70.3( a) or 71.3( a) for a reason other than your status as an area source under this subpart. Notwithstanding the previous sentence, you must continue to comply with the provisions of this subpart applicable to area sources.

* * * * *

10. Appendix A to Subpart RRR is amended by revising the entry for § 63.1( c)( 2)

to read as follows:

Appendix A to Subpart RRR of Part 63  General Provisions Applicability to Subpart RRR Citation Requirement Applies to RRR Comment * * * * * * *

§ 63.1( c)( 2).......

. .........................

. Yes................

. § 63.1500( e) exempts area sources subject to this subpart from the obligation to obtain Title V operating permits.

* * * * * * *

PART 70   [ AMENDED]

1. The authority citation for part 70 continues to read as follows:

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

2. Section 70.3 is amended as follows:

a. by revising paragraph ( a) introductory text.

b. by removing and reserving paragraph ( b)( 3).

c. by revising paragraph ( b)( 4) introductory text. 111 § 70.3 Applicability.

( a) Part 70 sources. A State program with whole or partial approval under this part must provide for permitting of the following sources:

* * * * *

( b) * * *

( 4) The following source categories are exempted from the obligation to obtain a part 70 permit:

* * * * *

PART 71   [ AMENDED]

1. The authority citation for part 71 continues to read as follows:

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

§ 71.3  [ Amended]

2. Section 71.3 is amended by removing and reserving paragraph ( b)( 3).


Placeholder: confidential business information item

CA Walnut Commission (post-harvest) CUE Application for 2008

For more information please contact Aaron Levy by phone at<PHONE_NUMBER>
or by email at   HYPERLINK<EMAIL_ADDRESS><EMAIL_ADDRESS>


Chlorpyrifos-Methyl’s Use on Stored Grains (Corn and Wheat):  Checking
our available data sources, both proprietary (Kline, 2004) and (NASS,
1999 and 2002) data, almost 110,000 pounds of Chlorpyrifos-Methyl was
used on stored grains, on-farm (35,000 Lbs.) and off-farm (75,000 Lbs.).
 This amounted to 6 percent of the stored-grain insecticide market.  The
2004 proprietary data showed that the leading active ingredient is
Aluminum Phosphide with 43 percent of the market, followed by
Diatomaceous Earth (28%), and Malathion (15%).  For Wheat, the only NASS
Post-Harvest data are about 11,000 Lbs. of Chlorpyrifos-Methyl used in
1999, and almost 19,000 Lbs. used in 2002.  There were no NASS
post-harvest data on corn during these two years (1999 and 2002).

Proprietary Data Used:

THE U.S. MARKET FOR STORED GRAIN INSECTICIDES 2004

Public Data Links Used :

Agricultural Chemical Usage – Postharvest Applications – Corn and
Wheat (March 1999):

  HYPERLINK
"http://usda.mannlib.cornell.edu/usda/nass/AgriChemUsPostHarv//1990s/199
9/AgriChemUsPostHarv-03-18-1999_Corn%20and%20Wheat.pdf"
http://usda.mannlib.cornell.edu/usda/nass/AgriChemUsPostHarv//1990s/1999
/AgriChemUsPostHarv-03-18-1999_Corn%20and%20Wheat.pdf

Agricultural Chemical Usage – Postharvest Applications – Wheat
(March 2002):

  HYPERLINK
"http://usda.mannlib.cornell.edu/usda/nass/AgriChemUsPostHarv//2000s/200
2/AgriChemUsPostHarv-03-13-2002_Wheat.pdf"
http://usda.mannlib.cornell.edu/usda/nass/AgriChemUsPostHarv//2000s/2002
/AgriChemUsPostHarv-03-13-2002_Wheat.pdf


[Federal Register: March 3, 2009 (Volume 74, Number 40)]
[Notices]
[Page 9236]
[DOCID:fr03mr09-43]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. CP09-65-000]

Columbia Gas Transmission, LLC; Jefferson Gas, LLC; Notice of
Application

February 24, 2009.
    Take notice that on February 12, 2009, Columbia Gas Transmission,
LLC (Columbia), 5151 San Felipe, Suite 2500, Houston TX 77056, filed,
pursuant to section 7 of the Natural Gas Act (NGA), an application to
abandon by sale to Jefferson Gas, LLC (Jefferson), certain natural gas
facilities located in Menifee and Morgan Counties, Kentucky. Columbia
requests that the Commission find the facilities, when sold, as exempt
from the Commission's jurisdiction pursuant to section 1(b) of the NGA.
This filing is available for review at the Commission in the Public
Reference Room or may be viewed on the Commission's Web site at http://
www.ferc.gov using the ``eLibrary'' link. Enter the docket number
excluding the last three digits in the docket number field to access
the document. For assistance, please contact FERC Online Support at
<EMAIL_ADDRESS>or toll free at<PHONE_NUMBER>, or for TTY,
contact<PHONE_NUMBER>.
    Any questions regarding this Application should be directed to
Fredric J. George, Lead Counsel, Columbia Gas Transmission LLC, P.O.
Box 1273, Charleston, West Virginia 25325-1273, at<PHONE_NUMBER> or by
fax at<PHONE_NUMBER>.
    Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9,
within 90 days of this Notice the Commission staff will either:
complete its environmental assessment (EA) and place it into the
Commission's public record (eLibrary) for this proceeding, or issue a
Notice of Schedule for Environmental Review. If a Notice of Schedule
for Environmental Review is issued, it will indicate, among other
milestones, the anticipated date for the Commission staff's issuance of
the final environmental impact statement (FEIS) or EA for this
proposal. The filing of the EA in the Commission's public record for
this proceeding or the issuance of a Notice of Schedule for
Environmental Review will serve to notify federal and state agencies of
the timing for the completion of all necessary reviews, and the
subsequent need to complete all federal authorizations within 90 days
of the date of issuance of the Commission staff's FEIS or EA.
    There are two ways to become involved in the Commission's review of
this project. First, any person wishing to obtain legal status by
becoming a party to the proceedings for this project should, on or
before the below listed comment date, file with the Federal Energy
Regulatory Commission, 888 First Street, NE., Washington, DC 20426, a
motion to intervene in accordance with the requirements of the
Commission's Rules of Practice and Procedure (18 CFR 385.214 or
385.211) and the Regulations under the NGA (18 CFR 157.10). A person
obtaining party status will be placed on the service list maintained by
the Secretary of the Commission and will receive copies of all
documents filed by the applicant and by all other parties. A party must
submit 14 copies of filings made with the Commission and must mail a
copy to the applicant and to every other party in the proceeding. Only
parties to the proceeding can ask for court review of Commission orders
in the proceeding.
    However, a person does not have to intervene in order to have
comments considered. The second way to participate is by filing with
the Secretary of the Commission, as soon as possible, an original and
two copies of comments in support of or in opposition to this project.
The Commission will consider these comments in determining the
appropriate action to be taken, but the filing of a comment alone will
not serve to make the filer a party to the proceeding. The Commission's
rules require that persons filing comments in opposition to the project
provide copies of their protests only to the party or parties directly
involved in the protest.
    Persons who wish to comment only on the environmental review of
this project should submit an original and two copies of their comments
to the Secretary of the Commission. Environmental commenters will be
placed on the Commission's environmental mailing list, will receive
copies of the environmental documents, and will be notified of meetings
associated with the Commission's environmental review process.
Environmental commenters will not be required to serve copies of filed
documents on all other parties. However, the non-party commenters will
not receive copies of all documents filed by other parties or issued by
the Commission (except for the mailing of environmental documents
issued by the Commission) and will not have the right to seek court
review of the Commission's final order.
    Motions to intervene, protests and comments may be filed
electronically via the internet in lieu of paper; see, 18 CFR
385.2001(a)(1)(iii) and the instructions on the Commission's Web site
under the ``e-Filing'' link. The Commission strongly encourages
electronic filings.
    Comment Date: March 17, 2009.

Kimberly D. Bose,
Secretary.
 [FR Doc. E9-4424 Filed 3-2-09; 8:45 am]

BILLING CODE 6717-01-P


[Federal Register Volume 77, Number 47 (Friday, March 9, 2012)]
[Notices]
[Pages 14454-14456]
[FR Doc No: 2012-5779]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-66513; File No. SR-FINRA-2012-016]

Self-Regulatory Organizations; Financial Industry Regulatory
Authority, Inc.; Notice of Filing and Immediate Effectiveness of
Proposed Rule Change To Allow FINRA To Exempt Certain Alternative
Trading Systems From the Trade Reporting Obligation Under the Trade
Reporting and Compliance Engine (``TRACE'') Reporting Rules

March 5, 2012.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on February 28, 2012, the Financial Industry Regulatory Authority, Inc.
(``FINRA'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I and
II below, which Items have been prepared by FINRA. FINRA has designated
the proposed rule change as constituting a non-controversial rule
change under Rule 19b-4(f)(6) under the Act,\3\ which renders the
proposal effective upon filing with the Commission. The Commission is
publishing this notice to solicit comments on the proposed rule change
from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ 17 CFR 240.19b-4(f)(6).
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    FINRA is proposing to adopt new Rule 6731 to provide FINRA with
authority to exempt a member alternative trading system (``ATS'') that
meets the specified criteria from the trade reporting obligation under
the Rule 6700 Series. In addition, FINRA is proposing a conforming
change to Rule 9610 to specify that FINRA has exemptive authority under
proposed Rule 6731.
    The text of the proposed rule change is available on FINRA's Web
site at http://www.finra.org, at the principal office of FINRA and at
the Commission's Public Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, FINRA included statements
concerning the purpose of and basis for the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below. FINRA has prepared summaries, set forth in sections A,
B, and C below, of the most significant aspects of such statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

1. Purpose
    A member that is a ``Party to a Transaction'' as defined in FINRA
Rule 6710(e) in a transaction in a TRACE-Eligible Security must report
the trade to TRACE under Rule 6730(a).\4\ ``Party to a Transaction'' is
defined as ``an introducing broker-dealer, if any, an executing broker-
dealer, or a customer.'' \5\ An ATS, which term includes electronic
communications networks, is a Party to a Transaction and has a trade
reporting obligation when a transaction in a TRACE-Eligible Security is
executed through the ATS.\6\
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    \4\ See Rule 6730(a). In transactions between members, each
member must report the trade, and for transactions between a member
and a customer, the member must report the trade.
    \5\ Under Rule 6710(e), ``customer'' includes a broker-dealer
that is not a FINRA member.
    \6\ See www.finra.org/Industry/Compliance/MarketTransparency/TRACE/FAQ/P125244#reporting (FAQ: Who reports trades executed
through electronic trading systems that are themselves broker-
dealers? All FINRA members that are ``parties to a transaction''
have a trade reporting obligation under TRACE Rules. Where two FINRA
members effect/execute a transaction through an electronic trading
system that is registered as a broker-dealer, both members, as well
as the electronic trading system would have a trade reporting
obligation).
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    FINRA is proposing to adopt new Rule 6731 to provide FINRA with
authority to exempt, upon application and subject to specified terms
and conditions, a member ATS from the

obligation to report a transaction in a TRACE-Eligible Security under
certain limited circumstances. FINRA will only grant an exemption where
all of the conditions set forth in the proposed rule are satisfied.
    First, trades must be between ATS subscribers that are both FINRA
members. For any trades between non-members, or a FINRA member and a
customer (which includes a broker-dealer that is not a FINRA member),
the exemption will not apply, and the ATS will have a trade reporting
obligation under Rule 6730.
    The ATS also must demonstrate that it meets the following criteria.
First, the member subscribers must be fully disclosed to one another at
all times on the ATS. Second, although the system brings together the
orders of buyers and sellers and uses established, non-discretionary
methods under which such orders interact with each other, the system
does not permit automatic execution. A member subscriber must take
affirmative steps beyond the submission of an order to agree to a trade
with another member subscriber. Third, the trade does not pass through
any ATS account, and the ATS does not in any way hold itself out to be
a party to the specific trade. Fourth, the ATS does not exchange TRACE-
Eligible Securities or funds on behalf of the member subscribers, take
either side of the trade for clearing or settlement purposes,
including, but not limited to, at DTC or otherwise, or in any other way
insert itself into the trade.
    In addition, the ATS and the member subscribers must acknowledge
and agree in writing that the ATS shall not be deemed a party to the
specific trade for purposes of trade reporting and that trades shall be
reported by each member subscriber that satisfies the definition of
``Party to a Transaction'' under Rule 6710. An ATS that is granted an
exemption must obtain such written agreements from all of its member
subscribers prior to relying on the exemption.\7\
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    \7\ FINRA reminds members of their books and records obligations
under FINRA rules, the Exchange Act and applicable Exchange Act
rules. Thus, any ATS that is granted an exemption under the proposed
rule change would be required to retain the written agreements and
be able to produce them to FINRA upon request.
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    Finally, the ATS must agree to provide to FINRA on a monthly basis,
or such other basis as prescribed by FINRA, data relating to the volume
of trades in TRACE-Eligible Securities executed by the ATS's member
subscribers using the ATS's system (e.g., number of trades, number of
bonds (or notes, etc.) traded and total settlement value for each
TRACE-Eligible Security traded). Importantly, although an ATS exempted
under the proposed rule will not have trade reporting obligations under
FINRA rules, the trading occurring through the ATS is still considered
volume of the ATS for purposes of, among other things, the
recordkeeping requirements of Rule 302 of SEC Regulation ATS \8\ and
determining whether the ATS triggers the Fair Access requirements under
Rule 301(b)(5) of Regulation ATS or the Capacity, Integrity and
Security of Automated Systems requirements of Rule 301(b)(6) of
Regulation ATS, as applicable. The ATS also must acknowledge that
failure to report such data to FINRA, in addition to constituting a
violation of FINRA rules, will result in revocation of any exemption
granted pursuant to the proposed rule change.
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    \8\ 17 CFR 242.300-303.
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    Where an exemption is granted, the ATS will not be deemed a Party
to a Transaction for purposes of FINRA trade reporting rules and will
not be identified in trade reports submitted to FINRA. As expressly
stated in the proposed rule, the trade must be reported to FINRA by the
member subscribers that also are Parties to a Transaction under Rule
6710(e).\9\ For example, FINRA member BD1 displays a quote through ATS
X and member BD2 routes an order to BD1 for the price and size of BD1's
quote using a messaging system provided by ATS X. BD1 does not
subsequently re-route the order and executes the trade. Assuming that
ATS X meets all of the criteria set forth in the proposed rule and has
been granted an exemption by FINRA, it will not be deemed a Party to
the Transaction for trade reporting purposes and should not be
identified as such in the trade report submitted to FINRA. In this
example, BD1 and BD2 would each have a reporting obligation under Rule
6730.
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    \9\ FINRA notes that where an ATS has been granted an exemption
under the proposed rule, the member subscribers will be assessed the
Trading Activity Fee under FINRA By-Laws, Schedule A, Sec.  1. The
ATS will not be assessed such fees.
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    FINRA believes that the proposed rule change will reduce potential
confusion and possible misreporting by clearly identifying the member
with the trade reporting obligation in this instance. FINRA believes
that an ATS that satisfies all conditions of the proposed rule change
has a more limited involvement in the trade execution than the member
subscribers and therefore the proposed exemption is appropriate in this
narrow instance. FINRA expects that a large majority of ATSs will not
qualify for the exemption, and the proposed rule change will not result
in a change to their reporting.
    FINRA also is proposing a conforming change to Rule 9610 to add
proposed Rule 6731 to the list of rules pursuant to which FINRA has
exemptive authority.
    FINRA has filed the proposed rule change for immediate
effectiveness and has requested that the SEC waive the requirement that
the proposed rule change not become operative for 30 days after the
date of the filing, such that FINRA can implement the proposed rule
change on the date of filing.
2. Statutory Basis
    FINRA believes that the proposed rule change is consistent with the
provisions of Section 15A(b)(6) of the Act,\10\ which requires, among
other things, that FINRA rules be designed to prevent fraudulent and
manipulative acts and practices, to promote just and equitable
principles of trade, and, in general, to protect investors and the
public interest. FINRA believes that the proposed rule change will
reduce potential confusion and possible misreporting and enhance market
transparency by clearly identifying the member with the trade reporting
obligation under Rule 6730.
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    \10\ 15 U.S.C. 78o-3(b)(6).
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 B. Self-Regulatory Organization's Statement on Burden on Competition

    FINRA does not believe that the proposed rule change will result in
any burden on competition that is not necessary or appropriate in
furtherance of the purposes of the Act.

C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others

    Written comments were neither solicited nor received.

III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action

    Because the foregoing proposed rule change does not: (i)
Significantly affect the protection of investors or the public
interest, (ii) impose any significant burden on competition, and, (iii)
become operative for 30 days from the date on which it was filed, or
such shorter time as the Commission may designate if consistent with
the protection of investors and the public interest, the proposed rule
change has become effective pursuant to Section

19(b)(3)(A) of the Act \11\ and Rule 19b-4(f)(6) thereunder.\12\
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    \11\ 15 U.S.C. 78s(b)(3)(A).
    \12\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)(iii)
requires FINRA to give the Commission written notice of its intent
to file the proposed rule change, along with a brief description and
text of the proposed rule change, at least five business days prior
to the date of filing of the proposed rule change, or such shorter
time as designated by the Commission. The Commission has waived the
five-day prefiling requirement in this case.
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    FINRA has asked the Commission to waive the 30-day operative delay
so that the proposal may become operative immediately upon filing. The
Commission believes that waiver of the operative delay is consistent
with the protection of investors and the public interest. The proposed
rule change is based on FINRA Rules 6183 and 6625, which provide FINRA
authority to exempt certain ATSs from equity trade reporting. Those
rules were recently proposed, noticed for public comment, and approved
by the Commission.\13\ The conditions and applicability of the proposed
Rule 6731 are substantively identical. Therefore, the Commission
designates the proposal operative upon filing.\14\
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    \13\ See Securities Exchange Act Release No. 65695 (November 4,
2011), 76 FR 70190 (November 10, 2011) (approving FINRA-2011-051).
    \14\ For purposes only of waiving the 30-day operative delay,
the Commission has considered the proposed rule's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
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    At any time within 60 days of the filing of the proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. 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_ADDRESS>Please include
File Number SR-FINRA-2012-016 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-FINRA-2012-016. 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 Web site (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 Web site 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
a.m. and 3 p.m. Copies of such filing also will be available for Web
site viewing and printing at the principal office of FINRA. All
comments received will be posted without change; the Commission does
not edit personal identifying information from submissions. You should
submit only information that you wish to make publicly available. All
submissions should refer to File Number SR-FINRA-2012-016 and should be
submitted on or before March 30, 2012.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\15\
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    \15\ 17 CFR 200.30-3(a)(12).
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Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2012-5779 Filed 3-8-12; 8:45 am]
BILLING CODE 8011-01-P