2003. Available at: http://www.wrapair.org/forums/mtf/documents/eats/WEB_EATS_Final_Report_ July_31.pdf.
---------------------------------------------------------------------------

    In addition, BC will work with the State of New Mexico and the
other participating States to designate one tracking system
administrator (TSA). The submitted RH 309 SIP provides that the TSA
shall be designated as expeditiously as possible, but no later than six
months after the program trigger date. BC will enter into a binding
contract with the TSA that shall require the TSA to perform all TSA
functions described in the SIP and in 20.11.46 NMAC, such as
transferring and recording allowances. We propose to determine the
submitted trading program has adequate tracking system provisions in
accordance with CFR 51.308(e)(2)(vi)(F).
5. Account Representative
    Pursuant to 40 CFR 51.308(e)(2)(vi)(G), the submitted RH 309 SIP
relies on submitted rule <IP_ADDRESS> NMAC, which contains provisions
for the establishment of an account representative. The SIP submittal
requires each source to identify one account representative. The
account representative shall submit to BC and the TSA a signed and
dated certificate that contains a certification Statement verifying
that the account representative has all the necessary authority to
carry out the account representative responsibilities under the trading
program on behalf of the owners and operators of the sources. The
certification Statement also needs to indicate and that each such owner
and operator shall be fully bound by the account representatives
representations, actions, inactions, or submissions and by any decision
or order issued to the account representative by BC regarding the
trading program. We are proposing to determine the submitted rule
<IP_ADDRESS> NMAC and the submitted SIP meet the requirements for
``authorized account representative provisions'' in 40 CFR
51.308(e)(2)(vi)(G).

6. Allowance Transfers
    The submitted RH 309 SIP establishes procedures pertaining to
allowance transfers to meet the requirement of 40 CFR
51.308(e)(2)(vi)(H). <IP_ADDRESS> NMAC, a submitted rule we propose to
approve, contains requirements sources must follow for allowance
transfers. To transfer or retire allowances, the account representative
shall submit the transfer account number(s) identifying the transferor
account, the serial number of each allowance to be transferred, the
transferor's account representative's name and signature, and date of
submission. The allowance transfer deadline is midnight Pacific
Standard Time on March 1 of each year following the end of the control
period. Sources must correctly submit transfers by this time in order
for a source to be able to use the allowance to demonstrate compliance.
We are proposing to approve <IP_ADDRESS> as being consistent with the
program elements required at 40 CFR 51.308(e)(2)(vi)(H).
    Section C3 of the RH 309 SIP provides the procedures the TSA must
follow to transfer allowances. The TSA will record an allowance
transfer by moving each allowance from the transferor account to the
transferee account as specified by the request from the source, if the
transfer is correctly submitted and the transferor account includes
each allowance identified in the transfer. Within five business days of
the recording of an allowance transfer, the TSA shall notify the
account representatives of both the transferor and transferee accounts,
and make the transfer information publicly available on the Internet.
Within five business days of receipt of an allowance transfer that
fails to meet the requirements for transfer, the TSA will notify the
account representatives of both accounts of the decision not to record
the transfer, and the reasons for not recording the transfer. We are
proposing to determine the submitted trading program is consistent with
the ``allowance transfer provisions'' requirement of 40 CFR
51.308(e)(2)(vi)(H).
7. Compliance Provisions
    Pursuant to 40 CFR 51.308(e)(2)(vi)(I), the trading program in the
submitted RH 309 SIP provides the procedures for determining compliance
and relies on submitted rule <IP_ADDRESS> NMAC, which we are proposing
to approve. Per this submitted rule, the source must hold allowances as
of the allowance transfer deadline in the source's compliance account
(together with any current control year allowances held in the source's
special reserve compliance account) in an amount not less than the
total SO2 emissions for the control period from the source.
AQCB determines compliance by comparing allowances held by the source
in their compliance account(s) with the total annual SO2
emissions reported by the source. If the comparison of the allowances
to emissions results in emissions exceeding allowances, the source's
excess emissions are subject to the allowance deduction penalty in
<IP_ADDRESS> C. NMAC (discussed in further detail below). We are
proposing to determine the submitted rule <IP_ADDRESS> NMAC is
consistent with the ``compliance provisions'' requirement of 40 CFR
51.308(e)(2)(vi)(I).
8. Penalty Provisions
    The submitted rule <IP_ADDRESS> C. NMAC provides the penalty
provisions as required by 40 CFR 51.308(e)(2)(vi)(J). Per this section,
a source's allowances will be reduced by an amount equal to three times
the source's tons of excess emissions if they are unable to show
compliance. We are proposing to determine the submitted rule
<IP_ADDRESS> is consistent with the ``penalty provisions'' requirement
of 40 CFR 51.308(e)(2)(vi)(J).
9. Banking of Allowances
    As allowed by 40 CFR 51.308(e)(2)(vi)(K), <IP_ADDRESS> NMAC, which
we propose to approve, allows sources to use allowances from current
and prior years to demonstrate compliance, with some restrictions.
Sources can only use 2018 allowances to show compliance with the 2018
milestone and may not use allowances from prior years. In order to
insure that the use of banked allowances does not interfere with the
attainment or maintenance of reasonable progress goals, the backstop
trading program includes flow-control provisions (see section C4 of the
RH 309 SIP submittal). The flow control provisions are triggered if the
TSA determines that the banked allowances exceed ten percent of the
milestone for the next control year, and thereby ensure that too many
banked emissions are not used in any one year. We are proposing to
determine the submitted trading program has provisions that clarifies
the restrictions on the use of banked allowances, consistent with the
requirement in 40 CFR 51.308(e)(2)(vi)(K).
10. Program Assessment
    Pursuant to 40 CFR 51.308(e)(2)(vi)(L), section D1 of the BC RH SIP
submittal contains provisions for a 2013 assessment. For the 2013
assessment, BC will work with the State of New Mexico and other
participating States to develop a projected emission inventory for
SO2 through the year 2018. BC will then evaluate the
projected inventory and assess the likelihood of meeting the regional
milestone for the year 2018. BC shall include this assessment as part
of the 2013 progress report that must be submitted under 40 CFR
51.309(d)(10). We are proposing to determine the RH 309 SIP submittal
is consistent with the program assessment provisions requirement in 40
CFR 51.308(e)(2)(vi)(L).

F. Provisions for Stationary Source NOX and PM

    Pursuant to 40 CFR 51.309(d)(4)(vii) and 40 CFR 51.309(g), BC's RH
SIP submittal contains BART and long-term strategies to address
NOX and PM emissions As previously discussed, no sources in
Bernalillo County satisfied the definition for BART-eligible sources at
40 CFR 51.301. An assessment of emissions control strategies for
stationary source NOX and PM, and the degree of visibility
improvement that would result from implementation of the identified
strategies was prepared by the WRAP. This report, Stationary Source
NOX and PM Emissions in the WRAP Region: An Initial
Assessment of Emissions, Controls, and Air Quality Impacts, is included
in Appendix H-O of the AQCB RH SIP. This report represents the initial
assessment of stationary source NOX and PM strategies for
regional haze. Long-term strategies are discussed in section V. N
below.

G. Mobile Sources

    Pursuant to 40 CFR 51.309(d)(5)(i), BC, in collaboration with the
WRAP, assembled a comprehensive Statewide inventory of mobile source
emissions that was included in the RH 309 SIP submittal. The inventory
included on-road and non-road mobile source emissions inventories for
western States for the time period 1996 through 2018, inventorying
1996, and then projecting 2003, 2008, 2013, and 2018.\23\ These
inventories for New Mexico and the Albuquerque urban area are
summarized in Tables 10, 10.1, 10.2, and 10.3 of the BC RH SIP. Mobile
source emissions (on-road and non-road) are projected to be at their
lowest level within Bernalillo County at the end of the planning period
primarily

due to on-road vehicle emission and fuel standards established by the
EPA.
---------------------------------------------------------------------------

    \23\ Appendix 2007-C of the AQCB RH SIP, Summary and Discussion
of 1996 Through 2018 Mobile Source Emissions Inventories. Technical
Memo from Tom Moore to Mobile Sources Forum. November 26, 2002.;
Final Report: Development of WRAP Mobile Source Emission
Inventories, ENVIRON, Feb. 9, 2004.
---------------------------------------------------------------------------

    An emission inventory update was also done for a 2002 base year and
emission projections for the years 2008, 2013, and 2018.\24\ The
inventory shows a continuous decline in emissions from mobile sources
from VOC, NOX, PM2.5, elemental carbon (EC), and
organic carbon (OC) emissions over the period of 2002-2018. Per 40 CFR
51.309(d)(5)(i)(A), the inventories show a decline in mobile source
emissions and therefore no further action is required by the AQCB to
address mobile source emissions.
---------------------------------------------------------------------------

    \24\ Detailed information on the emission inventory is contained
in the ENVIRON Report WRAP Mobile Source Emission Inventories
Update, May 2006.
---------------------------------------------------------------------------

    Pursuant to 40 CFR 51.309(d)(5)(i)(B), Section D 1.(c) of the BC RH
SIP States that BC will submit a SIP revision no later than December
31, 2013, containing any long-term strategies necessary to reduce
SO2 emissions from non-road mobile sources consistent with
the goal of reasonable progress, if necessary, based on consideration
of the emission reductions achieved by Federal standards. We note the
available emission inventory projections show that there will be a 99
percent decrease in SO2 emissions from non-road mobile
sources for 2002-2018. The reduction will result from compliance with
EPA's rule titled Control of Emissions of Air Pollution from Non-road
Diesel Engines and Fuel (see 69 FR 38958). A 99 percent reduction in
SO2 from non-road mobile sources is consistent with the goal
of reasonable progress and no other long-term strategies are necessary
to address SO2 emissions from non-road mobile sources at
this time. Pursuant to 40 CFR 51.309(d)(5)(ii), BC will submit interim
reports to the EPA in 2013 and 2018 on the implementation of regional
and local recommendations from the GCVTC report pertaining to mobile
sources. BC will include these reports as part of the reports required
by 40 CFR 51.309(d)(10). We propose to determine the RH 309 SIP
submittal satisfies the requirements of 51 CFR 51.309(d)(5).

H. Programs Related to Fire

    Pursuant to 40 CFR 51.309(d)(6), the BC RH SIP submittal must
provide for an evaluation of how its SIP meets the 51.309(d)(6)
``Programs related to fire'' requirements.
    Based on our review of Section E of the BC RH SIP submittal, we
propose to find that the RH SIP submittal meets the 309(d)(6)
requirements as discussed in detail below. We also propose approval of
revisions to the BC's Open Burning rule submitted to us on December 26,
2003 and July 28, 2011. The 2003, and the 2011 submittals revise and
replace BC's Open Burning rule of 1980 that the EPA approved into the
SIP. By proposing to approve the December 26, 2003, and the July 28,
2011 submittals, we are proposing to repeal BC's Open Burning rule of
1980 from the SIP.
1. Evaluation of Current Fire Programs
    BC's submittal meets 51.309(d)(6)(i) as it demonstrates how its
smoke management program and all federal or private programs for
prescribed fire in BC have a mechanism in place for evaluating and
addressing the degree of visibility impairment from smoke in their
planning and application of burning. For example, Tables 11 and 12 of
the BC RH SIP submittal document the relevant federal, State and local
programs that address visibility. See Tables 11 and 12 for references
to the State of New Mexico's Open Burning Rule (20.2.60 NMAC), and the
State of New Mexico's Smoke Management Rule (20.2.65 NMAC). To address
local programs, BC has adopted the Albuquerque-Bernalillo County Open
Burning Regulation (20.11.21 NMAC) and submitted this to us for SIP
approval and as noted previously, today we are proposing to approve it.
The rule was first approved by the EPA on April 10, 1980. See 45 FR
24468. To address the Regional Haze Rule requirements, the AQCB later
revised its rules in 2003 and 2011. See submittals at the EPA docket
identified No. EPA-R06-OAR-2009-0648. A more detailed discussion of our
proposed approval of the BC Open Burning Rule can be found in the TSD.
There are two types of burns specified by the rule. PB-I burns are
those burn projects expected to generate less than one ton per day of
PM10 and PB-II burns are those burn projects expected to
generate one ton per day or more of PM10.
    We propose to find that BC's Open Burning Rule meets the specific
additional requirements of 51.309(d)(6)(i) which address: (a) Actions
to minimize emissions, (b) evaluation of smoke dispersion, (c)
alternatives to fire, (d) public notification, (e) air quality
monitoring, (f) surveillance and enforcement, and (g) program
evaluation. These are discussed below.
a. Actions To Minimize Emissions
    In order to minimize emissions, Section <IP_ADDRESS> of BC's Open
Burn Rule requires the use of emission reduction techniques (ERT) by
burners. Any techniques used in conjunction with burning that reduce
the actual amount of emissions produced from a planned burn project are
considered emission reduction techniques. Emission reduction techniques
are described in <IP_ADDRESS> NMAC and include reducing the area burned,
mechanical treatments, chemical pre-treatments, site conversion, land
use change, reduction in fuel loading, reduction in fuel consumption,
minimization of emission factor, and the use of an air curtain
incinerator. The rule requires land managers burning PB-II burns to use
at a minimum, one emission reduction technique included in <IP_ADDRESS>
NMAC for each planned burn project (<IP_ADDRESS> C.(3) NMAC). PB-II
burners will indicate on the required form which emission reduction
techniques are being utilized for each planned burn project. We propose
to find that this portion of the Open Burning rule meets this
requirement.
b. Evaluation of Smoke Dispersion
    To evaluate smoke dispersion, <IP_ADDRESS> B.(1)(b) NMAC only allows
PB-I burns to be ignited during daytime hours when the ventilation
index category is rated ``Good'' or better as determined by using the
methodology outlined in <IP_ADDRESS> NMAC. To comply with this
requirement, the burner must conduct visual monitoring and document the
results in writing. These results include an evaluation of the smoke
dispersion by recording characteristics of the smoke (e.g., color,
density), including the general compass direction of dispersion, the
patterns of vertical dispersion, and the duration of the smoke
plume(s), and corresponding time-of-day information. For burns within 1
mile of a population, the burner must notify the population in advance
and AQCB may choose to conduct instrument monitoring (<IP_ADDRESS> B.(5)
NMAC).
    For PB-II burns, <IP_ADDRESS> C. NMAC provides the burner can ignite
a planned burn project only during times when the ventilation category
is ``Good'' or better \25\ as determined by using the methodology
outlined in <IP_ADDRESS> NMAC, and must notify the public at least two
days prior to the burn. The burner must conduct visual monitoring and
document the results in writing. The AQCB may choose to conduct
instrument monitoring in addition to visual monitoring. We propose to
find

that this portion of the Open Burning rule meets this requirement.
---------------------------------------------------------------------------

    \25\ Ventilation category is a classification that describes the
potential for smoke to ventilate away from its source. The
classification (Excellent, Very Good, Good, Fair, Poor) is
determined by multiplying the mixing height in feet by the transport
winds in knots, thus providing the ventilation category in knot-
feet. The ventilation category can be found in the National Weather
Service's Fire Weather Forecast, which is the State approved source
for this information.
---------------------------------------------------------------------------

c. Alternatives to Fire
    To address the alternatives to fire requirement, <IP_ADDRESS> C.(2)
NMAC requires that for burns exceeding 1 ton PM10 emissions
per day, burners must consider the use of alternatives to burning.
Burners must then document that the use of alternatives to burning was
considered prior to the decision to utilize fire. The documentation
includes citing the feasibility criterion that prevented the use of
alternatives. This documentation must be included on the registration
form provided by the AQCB. The alternatives to fire that must be
considered are described in <IP_ADDRESS> NMAC. We propose to find that
this portion of the Open Burning rule meets this requirement.
d. Public Notification
    To meet the public notification requirements, <IP_ADDRESS> B.(5)(b)
NMAC requires that for PB-I burns, burners must make a good faith
effort to notify the populations that are located within one mile of
the planned burn project. The method of notification shall be an
advertisement in a newspaper of general circulation in the area where
the burn will take place, or other means, as approved by the AQCB to
ensure that adequate notice is provided to the affected public. The
burner must conduct public notification no sooner than 30 days and no
later than two days in advance of the ignition of the planned burn
project. In addition, the burner will also notify the local fire
authorities prior to igniting a burn and register the burn project with
Albuquerque environmental health department as required by <IP_ADDRESS>
B.(2)-(3) NMAC. The Open Burning rule at <IP_ADDRESS> (C) NMAC requires
that for PB-II burns, burners must make a good faith effort to notify
the public using an advertisement in a newspaper of general circulation
in the area where the burn will take place, or other means, as approved
by the AQCB to ensure that adequate notice is provided to the affected
public. The burner must conduct public notification no sooner than 30
days and no later than two days in advance of the ignition of the
planned burn project as required by <IP_ADDRESS> C.(11) NMAC. In
addition, the burner will also notify the local fire authorities prior
to igniting a burn and register the burn project with Albuquerque
environmental health department as required by <IP_ADDRESS> C.(6)-(7)
NMAC. We propose to find that this portion of the Open Burning rule
meets this requirement.
e. Air Quality Monitoring
    To address air quality monitoring, NMAC sections <IP_ADDRESS>
B.(1)(b)(ii), B.(5)(a), and C.(5) require that PB-I and PB-II burners
conduct and document visual monitoring on all planned burn projects.
Burners will evaluate the smoke dispersion by recording characteristics
of the smoke (e.g., color, density), including the general compass
direction of dispersion, the patterns of vertical dispersion, and the
duration of the smoke plume(s). The use of monitoring equipment will be
based on the planned burn project's proximity to a population,
nonattainment area, or Class I area and will be determined on a case-
by-case basis. We propose to find that this portion of the Open Burning
rule meets this requirement.
f. Surveillance and Enforcement
    To address surveillance and enforcement requirements, 20.11.21 NMAC
requires that the permittee submit reports and burn project tracking
forms to the AQCB on PB-I and PB-II burns. See <IP_ADDRESS> NMAC. In
addition, <IP_ADDRESS>F States that any permit issued under the rule may
be revoked or suspended, if the applicant fails to comply with the
permit provisions therein, and the permittee may be subject to
enforcement actions. We propose to find that this portion of the Open
Burning rule meets this requirement.
g. Program Evaluation
    Pursuant to 40 CFR 51.309(d)(6)(i), BC has included in the RH 309
SIP submittal an evaluation of its smoke management program and all
Federal, State, and private prescribed fire smoke management programs
in Bernalillo County based on the potential to contribute to visibility
impairment in the 16 Class I Areas of the Colorado Plateau, and how
visibility protection from smoke is addressed in planning and
operation. The RH SIP submittal also contains an evaluation of whether
its smoke management program and these prescribed fire smoke management
programs contain the following elements: Actions to minimize emissions;
evaluation of smoke dispersion; alternatives to fire; public
notification; air quality monitoring; surveillance and enforcement; and
program evaluation. The SIP at Section E(b) and Tables 11 and 12
describe the results of these evaluations in detail. For example, BC
commits to host an annual meeting with all burners and interested
stakeholders to assess the adequacy of the design, impact, and
implementation of the program. BC commits to review gathered data with
stakeholders on an annual basis that will serve to establish annual
emissions goals. It has also adopted an Open Burning regulation at
20.11.21 NMAC that serves as the foundation of the Open Burning
Program, which the AQCB administers and enforces. We propose to find
that the BC RH SIP submittal meets the requirement for program
evaluation under 51.309(d)(6)(i).
2. Inventory and Tracking System
    Pursuant to 40 CFR 51.309(d)(6)(ii), States must include in their
section 309 plan a Statewide process for gathering the essential post-
burn activity information to support emissions inventory and tracking
systems. The BC RH SIP submittal provides for inventory and tracking
measures that we propose to find meet the 309(d)(6)(ii) requirement.
See Section E(c) of the BC RH SIP submittal. For example, BC's Open
Burning rule at <IP_ADDRESS> NMAC includes requirements for PB-I and PB-
II burners to report on emissions from their burns including
quantitative information regarding fuel types, fuel consumption, and
type of burn to maintain an adequate emission inventory. The AQCB
maintains a fire emission inventory of the following pollutants: VOC,
NOX, elemental carbon, organic carbon, and fine particulate
for fire sources within Bernalillo County. <IP_ADDRESS>.B(4) NMAC
requires applicants for PB-I burns to complete and submit to the AQCB a
burn project tracking form within two weeks after completion of the
burn activity. <IP_ADDRESS>.C(9) NMAC requires applicants for PB-II
burns to complete and submit to the AQCB a burn project tracking form
within two weeks after completion of the burn activity. Completion of
these tracking forms in conjunction with the emission quantification
requirements described in <IP_ADDRESS> should serve as the basis for
inventory and tracking of emissions in Open Burning rule. The emissions
tracking system follows the WRAP Fire Tracking System Policy (See
Appendix K-O of the ABQ RH SIP). BC will submit emission inventory
reports to the WRAP and each year, BC will complete an emissions
inventory and submit the report to the State of New Mexico, as required
under 20.11.47 Emissions Inventory Requirements. We are proposing to
determine the RH SIP submittal meets these requirements.
3. Identification and Removal of Administrative Barriers
    We propose to find that the BC RH SIP submittal meets the
requirements for 309(d)(6)(iii) that requires that States

identify existing administrative barriers to the use of non-burning
alternatives and adopt a process for continuing to identify and remove
administrative barriers where feasible. Section E(d) of the RH SIP
submittal, describes the process the AQCB commits to undertake to
address this requirement. For example, the AQCB is committed to work
with key public and private entities to identify and remove
administrative barriers to the use of alternatives to burning for
prescribed fire on federal, State, and private lands, pursuant to 40
CFR 51.309(d)(6)(iii). The process is collaborative and provides for
continuing identification and removal of administrative barriers, and
considers economic, safety, technical and environmental feasibility
criteria, and land management objectives. The BC RH SIP relies on Non-
burning Alternatives for Vegetation and Fuel Management, and Burning
Management Alternatives on Agricultural Lands in the Western United
States (Appendix 2007-E of the BC RH SIP) developed by the WRAP for
non-burning alternatives and methods to assess their applicability.
Should the AQCB determine that an administrative barrier exists, the
AQCB will work collaboratively with the appropriate public and private
entities to evaluate the administrative barrier, identify the steps
necessary to remove the administrative barrier, and initiate the
removal of the administrative barrier, where it is feasible to do so.
During the development of revisions to the Open Burning rule, the AQCB
identified one potential administrative barrier to the use of non-
burning alternatives that concerns the use of air curtain incinerators
(ACIs). An ACI is a pollution control device which operates by
forcefully projecting a curtain of air across an open chamber or pit in
which combustion occurs. Introducing high velocity air into the
combustion zone acts as a ``curtain'' and trapping the smoke and the
particulate matter. Use of this control device will enhance combustion,
compared with open burning, and will curb smoke and particulate
emissions. This curtain also helps with maintaining a higher combustion
zone temperature, thus improving the efficiency of the burn.
Furthermore, ACIs reduce risk of an escaped fire and could be
considered for safety reasons. Therefore, use of ACIs as an ERT is
acceptable. Such a use would be available to a source through BC's
regulation 20.22.7 NMAC. As BC's rules are currently structured, ACI's
are not allowed (See 20.11.68 NMAC) unless a variance to such a
prohibition is granted by BC under existing rules. See 20.22.7 NMAC. In
addition, the granting or approval of a variance by the board does not
mean automatic approval by the EPA. A source operating under a variance
may be subject to federal enforcement for not meeting the SIP unless
the State/local agency adopts and submits the variance to the EPA
approval as a SIP revision. We suggest that BC be proactive in taking
the necessary steps they need to revise their Open Burning rules to
allow for ACI's in appropriate circumstances without the need to issue
variances. The alternatives to fire developed by BC are described in
<IP_ADDRESS> NMAC.
4. Enhanced Smoke Management Program
    We propose to find that BC's RH SIP submittal and Open Burning rule
meet the requirements for 309(d)(iv) that requires the SIP include an
enhanced smoke management program, which means the smoke management
program considers visibility and is based on the criteria of
efficiency, economics, law, emission reduction opportunities, land
management objectives, and reduction of visibility impairment. Pursuant
to 40 CFR 51.309(d)(6)(iv), the smoke management programs that operate
within Bernalillo County are consistent with the WRAP Policy on
Enhanced Smoke Management Programs for Visibility (WRAP ESMP). A copy
of this policy can be found in the Appendix M-O of the BC RH SIP
submittal. The intent of the WRAP ESMP is to assist States to address
visibility effects associated with fire in a way that is adequate for a
SIP. The BC's Open Burning regulation, 20.11.21 NMAC, which became
effective on December 31, 2003 and was subsequently amended and
submitted for approval meets the Enhanced Smoke Management Program
(ESMP) policy and the Regional Haze Rule (RHR) requirements as
described above.
5. Annual Emission Goal
    We propose to find that BC's RH SIP submittal meets the
requirements for 309(d)(v) that requires that States adopt a process to
establish annual emission goals to minimize emission increases from
fire. Pursuant to 40 CFR 51.309(d)(6)(v), BC's RH SIP submittal
describes how it meets this requirement. It has committed to use the
policies set out by Western Regional Air Partnership Policy on Annual
Emission Goals for Fire to minimize emission increases in fire through
the use of annual emission goals. A copy of this policy can be found in
Appendix N-O of the BC RH SIP. BC will use a collaborative mechanism
for setting annual emission goals and developing a process for tracking
their attainment on a yearly basis. In addition, BC`s Open Burning rule
at <IP_ADDRESS> NMAC relies on emission reduction techniques (ERT),
where appropriate, to minimize emission increases in fire within
Bernalillo County. Under that rule, BC will quantify the ERTs that are
being used within Bernalillo County on a project-specific basis to
reduce the total amount of emissions being generated from areas where
prescribed fire is being used. As described above, the amended Open
Burning regulation, 20.11.21 NMAC, requires the use of at least one ERT
for all prescribed fires with emissions exceeding one ton of
PM10 per day.

I. Paved and Unpaved Road Dust

    To meet the requirements of 40 CFR 51.309(d)(7), the submitted RH
309 SIP relies on the assessment WRAP performed on the impact of dust
emissions from paved and unpaved roads on the 16 Class I areas of the
Colorado Plateau. The WRAP modeled and calculated the significance of
road dust in terms of the impact on visibility on the worst 20 percent
days. The modeled regional impact of road dust emissions ranged from
0.31 deciviews at the Black Canyon of the Gunnison National Park to
0.08 deciviews at the Weminuche Wilderness Area. For more information
on the WRAP modeling and assessment of road dust impacts, see Chapter 7
of the WRAP TSD.\26\ Based on the WRAP modeling, the AQCB has concluded
in section F of the SIP that road dust is not a significant contributor
to visibility impairment in the 16 Class I areas. We propose to agree
that road dust is not a significant contributor to visibility
impairment. Since AQCB has found that road dust is not a significant
contributor to visibility impairment, there is no need to include road
dust control strategies in the SIP pursuant to 40 CFR 51.309(d)(7).
AQCB will track road dust emissions with the assistance of the WRAP and
provide an update on paved and unpaved road dust emission trends,
including any modeling or monitoring information regarding the impact
of these emissions on visibility in the 16 Colorado Plateau Class I
Areas. These updates will include a reevaluation of whether road dust
is a significant contributor to visibility impairment. These updates
shall be part of the periodic implementation plan

revisions pursuant to 40 CFR 51.309(d)(10). We propose to determine the
submitted RH 309 SIP satisfies 40 CFR 51.309(d)(7).
---------------------------------------------------------------------------

    \26\ WRAP Regional Technical Support Document for the
Requirements of Sec.  309 of the Regional Haze Rule (64 Federal
Register 35714--July 1, 1999) revised May 7, 2008.
---------------------------------------------------------------------------

    We note BC has taken additional measures to address fugitive dust
in Fugitive Dust Control, 20.11.20 NMAC,\27\ in order to protect human
health and air quality. The regulation requires the use of reasonably
available control measures to reduce fugitive dust that adversely
affects public health, welfare, safety, or impairs visibility.
---------------------------------------------------------------------------

    \27\ 20.11.20 NMAC was previously approved by EPA on April 1,
2009 (74 FR 14731).
---------------------------------------------------------------------------

J. Pollution Prevention

    Under 40 CFR 51.309(d)(8), States must provide information on
renewable energy and other pollution prevention efforts in the State.
40 CFR 51.309(d)(8) does not require States to adopt any new measures
or regulations. We propose to find the information BC provided in the
RH 309 SIP submittal adequate to meet the requirements of 40 CFR
51.309(d)(8) as discussed below.
1. Description of Existing Pollution Prevention Program
    Pursuant to 40 CFR 51.309(d)(8)(i), Tables 13 through 17of the BC
RH SIP submittal summarize all pollution prevention and renewable
energy programs currently in place in New Mexico (as of 2003) that
could affect Bernalillo County. Table 18 shows all renewable energy
capacity and production in use or planned in the county as of 2002 (See
Appendix O-O for Statewide capacity and production). BC also determined
the total energy generation capacity and production within Bernalillo
County and New Mexico.
2. Incentive Programs
    Per 40 CFR 51.309(d)(8)(ii), Table 20 of the BC RH SIP submittal
identifies incentive programs in the State of New Mexico that reward
efforts for early compliance or to go beyond compliance by
participating in the 309 regional SO2 backstop trading
program. The backstop trading program allows for early reduction
credits. Sources of SO2 subject to the trading program that
reduce emissions prior to the program trigger date shall receive
additional emission allowances. The source may use such allowances for
compliance purposes or may sell them to other parties.
3. Programs To Preserve and Expand Energy Conservation Efforts
    Per 40 CFR 51.309(d)(8)(iii), Tables 13 through 17 of the BC RH SIP
submittal discuss the policies and programs within the State of New
Mexico that preserve and expand energy conservation efforts and
renewable energy which have a direct effect on Bernalillo County.
4. Potential for Renewable Energy
    Pursuant to 40 CFR 51.309(d)(8)(iv), the RH SIP submittal contains
an assessment of areas where there is the potential for renewable
energy to supply power in a cost effective manner. Appendix O-O of the
submitted RH SIP summarizes the potential for renewable energy
development in New Mexico.
5. Projections of Renewable Energy Goals, Energy Efficiency, and
Pollution Prevention Activities
    Pursuant to 40 CFR 51.309(d)(8)(v), the submitted BC RH SIP
submittal uses projections made by the WRAP of the short and long-term
emissions reductions, visibility improvements, cost savings, and
secondary benefits associated with renewable energy goals, energy
efficiency, and pollution prevention activities. (A complete
description of these projections can be found in Appendix O-O of the
SIP). The SIP provides overall projections of visibility improvements
for the 16 Class I areas (Table 2). These projections include the
combined effects of all measures in this SIP, including air pollution
prevention programs. Although emission reductions and visibility
improvements from air pollution prevention programs are expected at
some level, they were not explicitly calculated because the resolution
of the regional air quality modeling system is not currently sufficient
to show any significant visibility changes resulting from the marginal
nitrogen oxide emission reductions expected from air pollution
prevention programs.
6. Programs To Achieve GCVTC Renewable Energy Goal
    Pursuant to 40 CFR 51.309(d)(8)(vi), the submitted BC RH SIP
indicates that BC and the State of New Mexico will rely on current
renewable energy programs as described in Tables 13 through 17 and
Appendix O-O of the RH SIP submittal to demonstrate progress in
achieving the renewable energy goal of the GCVTC. The GCVTC's goal is
that renewable energy will comprise 10 percent of the regional power
needs by 2005 and 20 percent by 2015. BC will submit progress reports
in 2013 and 2018, describing Bernalillo County's share of New Mexico's
contribution toward meeting the GCVTC renewable energy goals. To the
extent that it is not feasible for Bernalillo County to meet its
contribution to these goals, BC will identify what measures were
implemented to achieve its contribution, and explain why meeting its
contribution was not feasible.

K. Additional Recommendations

    As part of the 1996 GCVTC report to the EPA, Recommendations for
Improving Western Vistas, the Commission included additional
recommendations that the EPA did not adopt as part of 40 CFR 51.309.
Pursuant to 40 CFR 51.309(d)(9), the submitted BC RH SIP has an
evaluation of the additional recommendations of the GCVTC to determine
if any of these recommendations could be practicably included in the
SIP. These recommendations are listed in Section H of the BC RH SIP.
The BC RH SIP includes the determination that no additional measures
were practicable or necessary to demonstrate reasonable progress in the
SIP. Pursuant to 40 CFR 51.309(d)(9), BC will submit to the EPA a
progress report in 2013 and 2018 on the progress toward developing and
implementing policy or strategy options recommended in the Commission
report. We propose to determine the RH 309 SIP submittal meets the
requirements of 40 CFR 51.309(d)(9).

L. Periodic Implementation Plan Revisions

    Pursuant to 40 CFR 51.309(d)(10)(i), section I of the BC RH SIP
submittal requires BC to submit to the EPA, as a SIP revision, periodic
progress reports for the years 2013 and 2018. The AQCB will assess
whether current programs are achieving reasonable progress in Class I
areas outside Bernalillo County that are affected by emissions from
within Bernalillo County. BC will address the elements listed under 40
CFR 51.309(d)(10)(i)(A) through (G) in the progress reports.
    Pursuant to 40 CFR 51.309(d)(10)(ii), the BC RH SIP submittal
provides that BC will take one of the following actions based upon
information contained in each periodic progress report. BC will provide
a negative declaration Statement to the EPA saying that no SIP revision
is needed if BC determines reasonable progress is being achieved. If
the BC finds that the SIP is inadequate to ensure reasonable progress
due to emissions from outside Bernalillo County, BC will notify the EPA
and the contributing State(s), and initiate efforts through a regional
planning process to address the emissions in question. If BC finds that
the SIP is inadequate to ensure reasonable progress due to emissions
from another country, BC will

notify the EPA and provide information on the impairment being caused
by these emissions. If BC finds that the SIP is inadequate to ensure
reasonable progress due to emissions from within Bernalillo County, BC
will develop emission reduction strategies to address the emissions and
revise the SIP no later than one year from the date that the progress
report was due. We propose to determine the RH 309 SIP submittal
adequately addresses the requirements of 40 CFR 51.309(d)(10) for
future progress reports.

M. InterState Coordination

    Pursuant to 40 CFR 51.309(d)(11), BC has participated in regional
planning and coordination with New Mexico and other States by
participating in the WRAP and participating in interState coordination
efforts with the State of New Mexico while developing its emission
reduction strategies under 40 CFR 51.309. The backstop trading program
in the BC SIP submittal and companion rules involved coordination of
the three States (Wyoming, Utah, and New Mexico, including BC) in its
development and will continue to involve coordination of the
participants once it is implemented. We propose to determine the
submitted RH 309 SIP is consistent with the 40 CFR 51.309(d)(11).

N. Additional Class I Areas

    The EPA is proposing to find that BC has identified the Class I
areas which may be affected by emissions from within Bernalillo County,
as required by 40 CFR 51.309(g), which provides a requirement for
compliance with 40 CFR 51.308(d) to the extent planning is necessary
for areas other than the 16 Class I areas addressed in the 309 SIP.
There are no Class I areas within Bernalillo County, therefore BC is
not required to identify reasonable progress goals or calculate
baseline and natural visibility conditions at any Class I area.
However, BC is required to address the apportionment of visibility
impact from the emissions generated by sources within Bernalillo County
at Class I areas outside of the county borders. There are a total of
nine Class I areas within the State of New Mexico that are located
close enough to BC that they may plausibly be affected by emissions
from Bernalillo County (Table 4), as discussed in Section L of the BC
RH SIP submittal.

              Table 4--Class I Areas Near Bernalillo County
------------------------------------------------------------------------
                                                           Distance from
                      Class I area                          Bernalillo
                                                            County (km)
------------------------------------------------------------------------
Bandelier Wilderness....................................              83
Bosque del Apache Wilderness............................             144
Carlsbad Caverns National Park..........................             387
Gila Wilderness.........................................             254
Salt Creek Wilderness...................................             274
Wheeler Peak Wilderness and Pecos Wilderness \28\.......             195
White Mountain Wilderness...............................             266
San Pedro Parks Wilderness Area \29\....................             106
------------------------------------------------------------------------

    Pursuant to 40 CFR 51.308(d)(3)(iii), the determinations in the BC
RH SIP submittal relied on the technical analysis and emission
inventories developed by the WRAP which is documented in the WRAP TSD
and available online at the WRAP Technical Support
System.30 31 The WRAP modeled the impacts of emissions from
each State on visibility impairment at each Class I area in the West.
Emissions were not analyzed on an individual county-level scale so
modeling results are not available to quantify the impact of emissions
from Bernalillo County on visibility. BC conducted a qualitative
analysis based on modeling results for Statewide New Mexico emissions
that provide information on the impact of New Mexico sources by source
category and pollutant, emissions inventory data for individual
counties in New Mexico, and weighted emission potential maps. This
analysis is summarized in Section L of the BC RH SIP submittal. The
full analysis is available as Appendix 2007-H and in the addendum to
Appendix 2007-H of the BC RH SIP. BC also prepared an evaluation of
emission inventory trends for 2002, 2005, and 2008 for NOX
and SO2 emissions for Bernalillo County (Appendix 2010 B of
the BC RH SIP).
---------------------------------------------------------------------------

    \28\ The IMPROVE monitoring site representing Pecos Wilderness
is located near Wheeler Peak Wilderness.
    \29\ San Pedro Parks Wilderness Area, located in New Mexico, is
one of the 16 Class I areas of the Colorado Plateau. The visibility
requirements for this area are covered under the Section 309
submittal evaluated in the preceding sections.
    \30\ http://vista.cira.coloState.edu/tss/.
    \31\ EPA's review of the WRAP photochemical modeling is included
in the docket, Technical Support Document for Technical Products
Prepared by the Western Regional Air Partnership in Support of
Western Regional Haze Plans.
---------------------------------------------------------------------------

    The analysis in the BC RH SIP submittal identifies some
inaccuracies in the emission inventories used by the WRAP to model the
2002 baseline and the 2018 future case. The 2002 and 2018 emission
projections are higher than expected when compared to the reduction in
SO2 emissions observed in the actual emissions inventories
for 2002, 2005 and 2008. Bernalillo County's SO2 emissions
estimated by the WRAP for 2002 are approximately 5000 TPY, whereas the
actual emissions for SO2 reported to the EPA for 2002 was
only 1574.9 TPY and have decreased significantly to approximately 260
TPY reported for 2008. The 2018 emissions used by the WRAP in the
photochemical modeling for BC projected an increase in emissions of
approximately 9000 TPY over 2002 emissions. Regardless of the rate of
population growth and increase in vehicle miles traveled within
Bernalillo County, it is clear that with current low-sulfur fuel
regulations such a large increase in emissions is unrealistic. We note
that Statewide emissions of SO2 in New Mexico estimated by
the WRAP are not projected to increase significantly by 2018, even
including the overestimation of Bernalillo County emissions. We also
note that Bernalillo County emissions are primarily area and mobile
emissions due to its large residential area. The county has no oil and
gas development, mining or large EGUs within its boundaries. Similarly,
NOX emission estimates used in the WRAP modeling are higher
than emissions reported to the EPA. Table 5 shows a comparison of
emission data from Bernalillo County (Appendix 2010-B of the BC RH SIP)
to emissions included in the WRAP estimates and photochemical modeling.

                       Table 5--Comparison of Bernalillo County Emission Estimates to WRAP
----------------------------------------------------------------------------------------------------------------
                                   Bernalillo County emissions (Appendix 2010-B)          WRAP emissions
                                 -------------------------------------------------------------------------------
                                       2002            2005            2008            2002            2018
----------------------------------------------------------------------------------------------------------------
NOX.............................         24930.6         23231.3         13570.9        33856.36        26878.08
SO2.............................          1574.9          1594.9           261.1         4996.01        14073.54
----------------------------------------------------------------------------------------------------------------

    Taking this into account and evaluating Bernalillo County's
contribution of emissions to the Statewide inventory, BC concluded that
it is improbable that Bernalillo County emissions have significant
impacts on nearby Class I areas. Bernalillo County's contribution of
emissions for NOX and SO2 to the New Mexico
emission inventory for 2002, as estimated by the WRAP is 10% of the
Statewide NOX emissions and 9% of Statewide SO2
emissions.
    The EPA is proposing to find that BC adequately evaluated the Class
I areas that may be impacted by sources of air pollution within
Bernalillo County and BC adequately determined that, at this time, it
is improbable that sources located within the county cause or
contribute to visibility impairment in a Class I area located outside
of the county. Furthermore, we propose to accept that visibility
impacts at these Class I areas due to area and mobile emission sources
in Bernalillo County are overestimated in the WRAP 2002 and 2018
visibility modeling. Emission trends for 2002 through 2008 indicate
that emissions of NOX and SO2 within Bernalillo
County are declining and therefore visibility impairment due to these
emissions are also anticipated to decrease from their current low
levels presented in Appendix 2007-H and in the addendum to Appendix
2007-H of the BC RH SIP.
    At this time, the qualitative analysis of county-level emission
impacts on Class I areas demonstrates that it is not necessary for BC
to promulgate additional specific regulations to reduce emissions to
address their effect on other Class I areas. BC will rely on current
regulations for fugitive dust control, the SO2 emission
milestone and backstop trading program, open burning, motor vehicle
inspection, motor vehicle emission standards and other regulations to
minimize emissions that could potential impact visibility at other
Class I areas, as identified in the BC RH SIP submittal. We therefore
propose to find that the BC RH SIP submittal meets the requirements of
40 CFR 51.308(d)(3).
    As it does not host a Class I area, BC is not required to develop a
monitoring strategy for measuring, characterizing, and reporting
regional haze impairment that is representative of Class I areas within
the State. However, BC is required to establish procedures by which
monitoring data and other information is used to determine the
contribution of emissions from within Bernalillo County to regional
haze impairment at Class I areas outside of the county and to document
the technical basis on which it is relying to determine its
apportionment of emission reductions necessary for achieving reasonable
progress in each Class I area it affects, as required by 40 CFR
51.308(d)(3)(iii), (d)(4)(ii) and (iii). BC is also required to develop
an emissions inventory of pollutants that are reasonably anticipated to
cause or contribute to visibility impairment in any Class I area, as
required by 40 CFR 51.308(d)(3)(iii) and (d)(4)(v). This inventory must
include baseline year emissions, emissions for the most recent year
that data is available, and estimates of future year emissions. The BC
RH SIP includes emission inventories for 2002 and 2018 developed by the
WRAP as well as actual emission inventories prepared by the State of
New Mexico and BC to satisfy 40 CFR 51.308(d)(3)(iii) and (d)(4)(v). BC
and the WRAP commit to update the inventory as well as maintain
reporting, recordkeeping and other measures necessary to assess and
report on visibility improvements as required by 40 CFR 51.308(d)(4)(v)
and (vi). The EPA is proposing to find that BC has met the requirements
of 40 CFR 51.308(d)(4) through its participation in the WRAP and
coordinated efforts with the State of New Mexico. BC will rely on WRAP
technical support to evaluate monitoring data and emissions growth to
determine if any future emission reductions are necessary for achieving
reasonable progress.

VI. Our Analysis of City of Albuquerque-Bernalillo County, New Mexico
InterState Visibility Transport SIP Provisions

    We are proposing to approve a portion of the SIP revision submitted
by the City of Albuquerque/Bernalillo County, New Mexico on July 30,
2007, for the purpose of addressing the ``good neighbor'' provisions of
the CAA section 110(a)(2)(D)(i) for the 1997 8-hour ozone NAAQS and the
PM2.5 NAAQS. Section 110(a)(2)(D)(i)(II) of the Act requires
that States have a SIP, or submit a SIP revision, containing provisions
``prohibiting any source or other type of emission activity within the
State from emitting any air pollutant in amounts which will * * *
interfere with measures required to be included in the applicable
implementation plan for any other State under part C [of the CAA] to
protect visibility.'' Because of the impacts on visibility from the
interState transport of pollutants, we interpret the ``good neighbor''
provisions of section 110 of the Act described above as requiring
States to include in their SIPs either measures to prohibit emissions
that would interfere with the reasonable progress goals set to protect
Class I areas in other States, or a demonstration that emissions from
Bernalillo County sources and activities will not have the prohibited
impacts on other States' existing SIPs.
    The BC visibility transport SIP submittal States that it is not
possible to assess whether there is any interference with the measures
in the applicable SIP for another State designed to protect visibility
for the 8-hour ozone and PM2.5 NAAQS until BC submits and
the EPA approves BC's RH SIP.
    In developing their Regional Haze SIP, BC and potentially impacted
States collaborated through the WRAP. Each State developed its Regional
Haze Plans and RPGs based on the WRAP modeling and technical analysis.
The WRAP modeling was based in part on the emissions reductions each
State and BC intended to achieve by 2018. We are proposing to approve
the BC RH SIP submittal which includes a demonstration that Bernalillo
County sources do not cause or contribute to visibility impairment at
Class I areas outside of Bernalillo County. We note that the BC RH SIP
includes participation in a SO2 emission milestone and
backstop trading program with the States of New Mexico, Wyoming and
Utah, and we propose to find that the BC measures included in the WRAP
modeling and relied upon by New Mexico and other States in developing
their visibility programs will occur. As previously Stated, we are also
proposing to agree with BC's determination that it is improbable that
sources within Bernalillo County are causing or contributing to
visibility impairment at any Class I areas outside the county, which
includes those of the other States. Therefore, we are proposing to
approve the City of Albuquerque-Bernalillo County InterState Transport
SIP submittal that addresses the visibility requirement of section
110(a)(2)(D)(i)(II) and find that the BC SIP contains adequate
provisions at this time to prohibit emissions from BC sources from
interfering with programs in other States to protect visibility.

VII. The EPA's Conclusions and Proposed Action

    The EPA is proposing to approve a City of Albuquerque/Bernalillo
County, New Mexico Implementation Plan (SIP) revision submitted on July
28, 2011 addressing the regional haze requirements for the mandatory
Class I areas under 40 CFR 51.309. The EPA is proposing that this SIP
revision meets the requirements of 40 CFR 51.309. We are proposing to
approve all parts of the

RH SIP submittal, which adds onto and incorporates earlier regional
haze documentation submitted on December 26, 2003 and September 5,
2008. We further propose to approve, as amended, the companion rules,
of 20.11.46 NMAC, Sulfur Dioxide Emission Inventory Requirements;
Western Backstop Sulfur Dioxide Trading Program and 20.11.21 NMAC, Open
Burning.
    We are also proposing to approve a portion of the SIP revision
submitted by the City of Albuquerque/Bernalillo County, New Mexico on
July 30, 2007, for the purpose of addressing one of the ``good
neighbor'' provisions of the CAA section 110(a)(2)(D)(i) for the 1997
8-hour ozone NAAQS and the PM2.5 NAAQS. This would approve
the portion of the SIP that addresses the requirement that the SIP must
prevent sources in the State from emitting pollutants in amounts which
will interfere with measures included in the required plans of other
States to protect visibility.
    As discussed earlier in this notice, the 309 backstop trading
program is dependent on the EPA taking final action approving all three
participating States' SIP submittals. Until the EPA takes final action
on all of the States' SIPs, the backstop trading program will not be
effective.

VIII. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve State
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely proposes to approve State law as
meeting Federal requirements and does not impose additional
requirements beyond those imposed by State law. For that reason, this
action:
     Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
     Does not provide the EPA with the discretionary authority
to address, as appropriate, disproportionate human health or
environmental effects, using practicable and legally permissible
methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the State, and the EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Air pollution control, Environmental protection, Intergovernmental
relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur dioxides, Visibility, InterState
transport of pollution, Regional haze, Best available control
technology.

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

    Dated: April 12, 2012.
Al Armendariz,
Regional Administrator, Region 6.
[FR Doc. 2012-9808 Filed 4-24-12; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 77, Number 151 (Monday, August 6, 2012)]
[Notices]
[Pages 46791-46793]
[FR Doc No: 2012-19119]

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

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[FMCSA Docket No. FMCSA-2012-0162]

Qualification of Drivers; Exemption Applications; Diabetes
Mellitus

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT

ACTION: Notice of final disposition.

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

SUMMARY: FMCSA announces its decision to exempt 17 individuals from its
rule prohibiting persons with insulin-treated diabetes mellitus (ITDM)
from operating commercial motor vehicles (CMVs) in interstate commerce.
The exemptions will enable these individuals to operate CMVs in
interstate commerce.

DATES: The exemptions are effective August 6, 2012. The exemptions
expire on August 6, 2014.

FOR FURTHER INFORMATION CONTACT: Elaine M. Papp, Chief, Medical
Programs Division,<PHONE_NUMBER><EMAIL_ADDRESS>FMCSA, Room
W64-224, Department of Transportation, 1200 New Jersey Avenue SE.,
Washington, DC 20590-0001. Office hours are from 8:30 a.m. to 5 p.m.,
Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

    You may see all the comments online through the Federal Document
Management System (FDMS) at: http://www.regulations.gov.
    Docket: For access to the docket to read background documents or
comments, go to http://www.regulations.gov and/or Room W12-140 on the
ground level of the West Building, 1200 New Jersey Avenue SE.,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.
    Privacy Act: Anyone may search the electronic form of all comments
received into any of DOT's dockets by the name of the individual
submitting the comment (or of the person signing the comment, if
submitted on behalf of an association, business, labor union, or other
entity). You may review DOT's Privacy Act Statement for the Federal
Docket Management System (FDMS) published in the Federal Register on
January 17, 2008 (73 FR 3316), or you may visit http://edocket.access.gpo.gov/2008/pdf/E8-785.pdf.

Background

    On June 18, 2012, FMCSA published a notice of receipt of Federal
diabetes exemption applications from 17 individuals and requested
comments from the public (77 FR 36333). The public comment period
closed on July 18, 2012, and no comments were received.
    FMCSA has evaluated the eligibility of the 17 applicants and
determined that granting the exemptions to these individuals would
achieve a level of safety equivalent to or greater than the level that
would be achieved by complying with the current regulation 49 CFR
391.41(b)(3).

Diabetes Mellitus and Driving Experience of the Applicants

    The Agency established the current requirement for diabetes in 1970
because several risk studies indicated that drivers with diabetes had a
higher rate of crash involvement than the general population. The
diabetes rule provides that ``A person is physically qualified to drive
a commercial motor vehicle if that person has no established medical
history or clinical diagnosis of diabetes mellitus currently requiring
insulin for control'' (49 CFR 391.41(b)(3)).
    FMCSA established its diabetes exemption program, based on the
Agency's July 2000 study entitled ``A Report to Congress on the
Feasibility of a Program to Qualify Individuals with Insulin-Treated
Diabetes Mellitus to Operate in Interstate Commerce as Directed by the
Transportation Act for the 21st Century.'' The report concluded that a
safe and practicable protocol to allow some drivers with ITDM to
operate CMVs is feasible. The September 3, 2003 (68 FR 52441), Federal
Register notice in conjunction with the November 8, 2005 (70 FR 67777),
Federal Register notice provides the current protocol for allowing such
drivers to operate CMVs in interstate commerce.
    These 17 applicants have had ITDM over a range of 1 to 23 years.
These applicants report no severe hypoglycemic reactions resulting in
loss of consciousness or seizure, requiring the assistance of another
person, or resulting in impaired cognitive function that occurred
without warning symptoms, in the past 12 months and no recurrent (2 or
more) severe hypoglycemic episodes in the past 5 years. In each case,
an endocrinologist verified that the driver has demonstrated a
willingness to properly monitor and manage his/her diabetes mellitus,
received education related to diabetes management, and is on a stable
insulin regimen. These drivers report no other disqualifying
conditions, including diabetes-related complications. Each meets the
vision requirement at 49 CFR 391.41(b)(10).
    The qualifications and medical condition of each applicant were
stated and discussed in detail in the June 18, 2012, Federal Register
notice and they will not be repeated in this notice.

Discussion of Comments

    FMCSA did not receive any comments in this proceeding.

Basis for Exemption Determination

    Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption
from the diabetes requirement in 49 CFR 391.41(b)(3) if the exemption
is likely to achieve an equivalent or greater level of safety than
would be achieved without the exemption. The exemption allows the
applicants to operate CMVs in interstate commerce.
    To evaluate the effect of these exemptions on safety, FMCSA
considered medical reports about the applicants' ITDM and vision, and
reviewed the treating endocrinologists' medical opinion related to the
ability of the driver to safely operate a CMV while using insulin.
    Consequently, FMCSA finds that in each case exempting these
applicants from the diabetes requirement in 49 CFR 391.41(b)(3) is
likely to achieve a level of safety equal to that existing without the
exemption.

Conditions and Requirements

    The terms and conditions of the exemption will be provided to the
applicants in the exemption document and they include the following:
(1) That each individual submit a quarterly monitoring checklist
completed by the treating endocrinologist as well as an annual
checklist with a comprehensive medical evaluation; (2) that each
individual reports within 2 business days of occurrence, all episodes
of severe hypoglycemia, significant complications, or inability to
manage diabetes; also, any involvement in an accident or any other
adverse event in a CMV or personal vehicle, whether or not it is
related to an episode of hypoglycemia; (3) that each individual provide
a copy of the ophthalmologist's or optometrist's report to the medical
examiner at the time of the annual medical examination; and (4) that
each individual provide a copy of the annual medical certification to
the employer for retention in the driver's qualification file, or keep
a copy in his/her driver's qualification file if he/she is self-
employed. The driver must also have a copy of the certification when
driving, for presentation to a duly authorized Federal, State, or local
enforcement official.

Conclusion

    Based upon its evaluation of the 17 exemption applications, FMCSA
exempts Bruce R. Bennett (MN), Stephen W. Best (PA), Steven L. Cornwell
(IA), Steven D. Hancock (IN), Michael A. Hendrickson (OR), James B.
Hills (KS), Charles Keegan, Jr. (NJ), Londell W. Luther (MD), Darrell
L. Meadows (TX), John P. Miller (OK), Gary J. Rice (VT), Jose A.
Rosario (NY), Jordan D. Seeburger (PA), Allyn E. Smith (SD), Hayden P.
Thielen (MN), Larry J. Vanzalen (MI), and Jason R. Zeorian (NE) from
the ITDM requirement in 49 CFR 391.41(b)(3), subject to the conditions
listed under ``Conditions and Requirements'' above.
    In accordance with 49 U.S.C. 31136(e) and 31315 each exemption will
be valid for two years unless revoked earlier by FMCSA. The exemption
will be revoked if the following occurs: (1) The person

fails to comply with the terms and conditions of the 1/exemption; (2)
the exemption has resulted in a lower level of safety than was
maintained before it was granted; or (3) continuation of the exemption
would not be consistent with the goals and objectives of 49 U.S.C.
31136(e) and 31315. If the exemption is still effective at the end of
the 2-year period, the person may apply to FMCSA for a renewal under
procedures in effect at that time.

    Issued on: July 27, 2012.
Larry W. Minor,
Associate Administrator for Policy.
[FR Doc. 2012-19119 Filed 8-3-12; 8:45 am]
BILLING CODE 4910-EX-P