More than 2 million tritium exit signs are estimated to have been sold in the United States. Tritium powered self luminous exit signs do not require electricity or batteries, and are commonly installed in areas where electrical power is not conveniently accessible or its use may be hazardous. The tritium exit sign remains lit during power outages and thus serve their intended purposes in emergencies. As tritium exit signs age, they do not glow as brightly and at some point will not meet the luminosity requirement of applicable building or fire safety codes and are replaced. A self-luminous exit sign is a non-electrical product that uses radioactive tritium gas to produce light. Specifically, the signs contain light sources that consist of glass tubes, internally coated with phosphor, and filled with tritium gas. Tritium (H-3) is an isotope of hydrogen that emits low-energy beta radiation in the form of electrons. These electrons excite the phosphor, causing the glass tubes to continuously emit light. This low-energy beta radiation cannot penetrate the glass tube. If the tubes in the exit signs are severely damaged, tritium may escape and disperse by diffusion in the air.

On January 12, 2010 (75 FR 1559), the NRC published a notice of receipt of a petition for rulemaking filed by ASTSWMO. The ASTSWMO requested that the NRC amend its regulations to improve the labeling and accountability of tritium exit signs.

The ASTSWMO believes the majority of unaccounted for tritium exit signs are disposed of in solid waste landfills where they become potential sources of groundwater and surface water contamination. The ASTSWMO specifically requested that the NRC revise its regulations or guidance to state that: The labeling should be in several locations on the sign and printed with larger font; an expiration date should be distinctly legible to a fire or building inspector without taking down the sign; and the radiation trefoil should be displayed on the front and back of advertisements. Also, the petitioner recommended that a national collection effort with distinct milestones and goals should be undertaken to consolidate all expired and disused tritium exit signs. The petitioner requested that the NRC organize a meeting with ASTSWMO and all interested stakeholders to set a new path forward on this issue. The petitioner stated that it would ideally like to see tritium exit sign technology immediately replaced by alternative technologies.

The ASTSWMO, after an evaluation of a case history of landfill leachate sampling, asserted that the majority of unaccounted for tritium exit signs are disposed of in solid waste landfills where they become potential sources of groundwater and surface water contamination. The petitioner also claimed that a minority of tritium exit signs are returned to the manufacturer for recycling or disposed of as low-level radioactive waste.

The ASTSWMO also made the assertion that advances in photo-luminescent technology over the past decade have demonstrated that effective alternate technology exists for places without electricity, replacing the need for tritium self-luminescent exit signs.

The petitioner made several requests for rulemaking that would require revision to Title 10 of the Code of Federal Regulations (10 CFR) Part 32, as well as requests that are outside the rulemaking process. The petitioner requested the following:

(1) Labeling should be in several locations on the sign with larger font. The basis for this request is the petitioner's belief that an increased number of labels on tritium exit signs will improve the ability to recognize the signs, which in turn will improve the accountability of the signs.

(2) An expiration date should be distinctly legible to a fire or building inspector without taking down the sign. As with adding labels in several locations on the sign, the basis for this request is the petitioner's belief that an expiration date that is legible without the need to remove the sign from where it is installed will improve the ability to recognize tritium exit signs, which in turn, will improve the accountability of the signs.

(3) The radiation trefoil should be displayed on the front and back of advertisements. The petitioner communicated several concerns as the basis for this request: (a) Manufacturers do not always demonstrate accountability in distributing tritium exit signs to the proper recipients; (b) recipients of signs are not informed of the proper ownership and regulatory requirements provided in NRC guidance documents and regulations (i.e.,NUREG-1556, Vol. 16, Appendix L, and 10 CFR 31.5); and (c) online vendors do not always highlight the fact that tritium is radioactive and has special general licensing requirements. The petitioner believes that requiring the display of the radiation trefoil in advertisements is a way to make potential customers fully aware that tritium in exit signs is radioactive material. The petitioner believes trefoils in advertisements would act as a safeguard against customers unknowingly acquiring exit signs that require regulatory controls.

(4) Replacement of tritium exit signs with an alternative technology. The petitioner believes that the state of current photo-luminescent technology and other alternatives can effectively replace tritium exit signs.

(5) A national collection effort to prevent the improper disposal of tritium exit signs.

(6) Organize a meeting with ASTSWMO and interested stakeholders outside of the rulemaking process. The petitioner offered to provide input to the NRC on approaches to cease this improper disposal of tritium exit signs.

Because item 4 is outside the NRC's regulatory authority and mission, and items 5 and 6 are not specific requests to change NRC regulations, comments on these proposals are not being addressed further in this response. The NRC will respond to the petitioner on these issues via separate correspondence.

The notice of receipt of the petition for rulemaking (75 FR 1559) invited interested persons to submit comments. The petition was also shared with 37 Agreement States that regulate the manufacture and use of tritium exit signs within their States, under agreement with the NRC. The comment period closed on March 29, 2010. The NRC received responses from 13 commenters including 2 manufacturers, 6 Agreement States, 1 Federal agency, and other industry representatives. The following provides a summary of the comments received on the petition.

The petitioner requested improving the labeling of tritium exit signs by requiring the placement of labels in several locations on the sign, in larger font to improve recognition, and thus accountability. The majority of commenters agreed that labeling should be improved and no commenter specifically disagreed with this request.

The petitioner requested requiring the placement of an expiration date on tritium exit signs, and making the date distinctly legible to a fire or building inspector without the need to take down the sign. The rationale is that the fire or building inspector will be aware of an expired sign and request the replacement. Four commenters agreed. Two vendors commented that their exit signs already clearly show the expiration date and further noted this issue does not fall under the jurisdiction of the NRC.

The petitioner requested placement of the radiation trefoil prominently on the front and back of advertisements for the exit signs to ensure that general licensees understand that these signs contain radioactive byproduct material and are subject to regulatory controls. Five commenters agreed with this request.

One commenter who disagreed questioned, in general, the effectiveness of this action. Another commenter stated that the assertion that customers are not properly sensitized to the fact that the signs contain radioactive material is “completely unwarranted.” This commenter also stated that given that NRC regulations provide for the use of the trefoil where radioactive material is present, the placement of the trefoil in advertisements is inappropriate. Similarly, another commenter stated that placing the radiation trefoil on advertisements is not appropriate as advertisements do not contain radioactive material.

Three commenters disagreed with the petitioner's assertion that unaccounted for tritium exit signs disposed of in solid waste landfills are a potential source of groundwater and surface water contamination. One commenter stated it did not believe that the inadvertent disposal of tritium exit signs poses a significant public health and safety issue, even if the relatively large numbers suggested by ASTSWMO are accurate. Another commenter stated that while it is true that sampling of raw, untreated leachate from landfills in Pennsylvania and California confirmed above background levels of tritium, it has been determined that, considering the treatment, dilution, and discharge processes to which this leachate is subjected, there is currently no risk to drinking water supplies or possible human exposure.

After reviewing the information provided in the petition, and the comments received in response to the petition, the NRC has decided to deny PRM-32-6. In reaching this decision, the NRC reviewed the radiological risks presented by tritium exit signs and from the levels of tritium reported in landfill leachate and determined that there is a lack of significant radiological risk to the public health and safety related to the petitioner's assertions. The NRC determined that the existing NRC regulations adequately direct the proper methods of use, disposal, labeling, and information disclosure for tritium exit signs and that there is no significant risk to the public health and safety. However, the NRC believes that general licensee accountability may be strengthened by enhancing regulatory guidance and improvingcommunications between the NRC (and Agreement States) and manufacturers. The NRC periodically revises its licensing guidance and will evaluate the need for additional guidance in areas raised by the petitioner during this process.

Users of tritium exit signs are regulated under the general license provisions in 10 CFR 31.5. The general license in 10 CFR 31.5 requires users: Not to remove the labeling from the sign; to follow instructions and precautions on the label; not to abandon a sign; to properly dispose of signs by transferring them to a distributor or radioactive waste broker specifically licensed by the NRC or an Agreement State; to report any lost, stolen or broken sign(s) to the NRC; and not to give away or sell the sign to another individual, company, or institution unless it is to remain in use at a particular location,e.g.,in a transfer of ownership of a building. In this latter case, under 10 CFR 31.5(c)(9)(i), the user of a tritium exit sign is required to provide a copy of the regulatory requirements governing the use of such signs to the new user and must notify the NRC of the transfer. The user is also required to inform the NRC of a company name change or change of address; and to make certain other reports to the NRC.

The petitioner raised questions about the requirements placed on distributors related to whether users and others who come into contact with the sign are properly informed of the fact that the sign contains radioactive material and is subject to certain controls, in particular controls for disposal. Vendors of these products must obtain a license from the NRC or an Agreement State to distribute the signs to the general licensees, under 10 CFR 32.51 or equivalent provision of an Agreement State. The NRC and Agreement State regulations include requirements for labeling and safety instructions which require providing certain information to customers prior to transfer of the signs, including copies of applicable regulations and information on options for and estimated costs of disposal.

The petitioner stated that there needs to be multiple labels in several locations and that the labels need to be printed in larger font. The petitioner also requested that the expiration date be distinctly legible to a fire or building inspector without taking down the sign. To obtain a license to distribute tritium exit signs, an applicant must submit sufficient information related to its labeling of the exit signs. Specifically, under 10 CFR 32.51(a)(3), the applicant for a license to distribute tritium exit signs must ensure that the label on the signs be durable, legible, clearly visible, and include certain information including that use of the sign is subject to a general license and the regulations of the NRC or equivalent provisions of an Agreement State and that the label must be maintained in legible condition. The NRC or an Agreement State must approve the applicant's proposed labeling when authorizing distribution to users, at which time the regulator can address the appropriateness of fonts and proper placement on the sign. The expiration date (i.e.,the date the sign should be replaced in order to meet fire safety standards), is not a matter of NRC regulation because it focuses on the visibility of the sign, not the safe use of the radioactive material and is more appropriately addressed by other agencies responsible for fire safety.

The petitioner requested that the radiation trefoil be displayed on the front and back of advertisements. The NRC agrees with some of the commenters that the use of the trefoil on advertisements is not appropriate since use of the trefoil is utilized where radioactive material is actually present. The NRC has emphasized the importance of notifying end users of requirements for the use of generally licensed devices. For example, in an earlier NRC action related to misleading advertising, the NRC issued Information Notice (IN) 99-26, “Safety and Economic Consequences of Misleading Marketing Information,” dated August 24, 1999. The IN 99-26 highlighted that misleading marketing information and inadequate explanation of end-user regulatory requirements can lead to mishandling of devices used under the general license and encouraged manufacturers and distributors to market to users of the general license in such a way that the radioactive nature of the product is clearly understood and the regulatory requirements associated with the product are clearly explained. Under 10 CFR 32.51a(a)-(c) or equivalent Agreement State regulation, distributors are required to supply to customers prior to the actual transfer of the sign(s), copies of relevant regulations, information on acceptable disposal options including estimated costs of disposal, and indication of the NRC's policy of issuing high civil penalties for improper disposal.

Prior to NRC receiving this petition, the State of Pennsylvania contacted the NRC in 2006, relaying its concerns regarding possible improper disposal of tritium exit signs. The Conference of Radiation Control Program Directors also brought this issue to the attention of the NRC, via a 2007 resolution.

The NRC has previously implemented several measures to address this issue. The NRC implemented regulations to improve accountability of devices used under a 10 CFR 31.5 general license or an equivalent Agreement State provision (65 FR 79162; December 18, 2000, as amended at 65 FR 80991; December 22, 2000). Although disposal by transfer to a properly authorized specific licensee was always required, the previous regulatory framework did not require NRC or Agreement State notification of the transfer and disposal of tritium exit signs. Under current regulations, NRC and Agreement States users or general licensees are required to report transfer or disposal of devices containing byproduct material.

The NRC, in an effort to improve compliance with the regulatory requirements for tritium exit signs, issued Regulatory Issue Summary (RIS) 2006-25, “Requirements for the Distribution and Possession of Tritium Exit Signs and the Requirements in 10 CFR 31.5 and 32.51a,” dated December 7, 2006, which reiterated the requirements that distributors of tritium exit signs must follow when transferring them to general licensees. These requirements deal primarily with information that must be provided to customers. In addition, the RIS 2006-25 reiterated the requirements for general licensees regarding transfer and disposal of the tritium exit signs, with the intent of minimizing the chance that tritium exit signs will be disposed of incorrectly.

The NRC issued a Demand for Information (DFI) on January 16, 2009, which required that general licensees who possessed at least 500 tritium exit signs perform an inventory and report the results to the NRC. The results of the DFI demonstrated there is still some lack of awareness among users of tritium exit signs concerning their regulatory responsibilities which could, and in some cases did, result in the improper disposal of tritium exit signs. The NRC considered enforcement action against general licensees that were found not to have complied with the regulatory requirements. In one case in which one entity using the general licensee provisions failed to appoint an individual responsible for ensuring compliance with NRC requirements pertaining to tritium exit signs and improperly transferred signs, the NRC determined that a civil penalty of $369,300 could be appropriate for improper transfer or disposal of large numbers of tritium exit signs.

In response to the DFI findings, the NRC contacted seven distributors of tritium exit signs in an effort to improvecompliance with the reporting requirements of 10 CFR 32.52 and equivalent Agreement State provisions. The NRC initiated this contact with the goal of assisting distributors in their efforts to consistently provide the NRC with information that satisfies the reporting requirements in 10 CFR 32.52. This information reported under 10 CFR 32.52 pertains to the general licensees to whom distributors have transferred signs.

The petitioner asserted that “the majority” of unaccounted for tritium exit signs are disposed of in solid waste landfills where they may become potential sources of groundwater and surface water contamination. The NRC concludes that the petitioner did not demonstrate that the excess tritium being found in landfill leachate, even if resulting from improper disposal of tritium exit signs, could result in hazardous levels of tritium in drinking water. Published reports such as “Radiological Investigation Results for Pennsylvania Landfill Leachate: 2009 Tritium Update,” Safety and Ecology Corporation, Knoxville, TN, March 31, 2010, support this conclusion. The study incorporated the use of site-specific dilution factors based on factors such as discharge rates and known distances between leachate effluent release points and downstream water supply intakes to convert observed leachate tritium concentrations into diluted tritium concentrations assumed to be available for human consumption. The report concluded not only that the resulting concentrations of tritium were well below the U.S. Environmental Protection Agency (EPA) maximum contaminant level (MCL) of 20,000 pCi/L for tritium in drinking water, but that “average drinking water intake tritium concentrations * * * were more than 200 times less than the EPA 20,000 pCi/L MCL, ranging from 0-99 pCi/L.”

The petitioner also expressed concern that samples collected from leachate collection systems exceeded 20,000 pCi/L. It should be noted that 20,000 pCi/L is the EPA's MCL for tritium in drinking water and not leachate. Landfill monitoring reports show that despite high tritium concentrations in leachate, drinking water samples collected downstream of landfills maintain tritium concentrations well below the EPA's MCL. For example, the “Radiological Investigation Results for Pennsylvania Landfill Leachate: 2009 Tritium Update” report, referenced above, shows that “maximum drinking water [tritium] intake concentrations were over 100 times less than the EPA 20,000 pCi/L MCL ranging from 0 to 146 pCi/L.”

While the NRC does not regulate solid waste landfills, the NRC staff also concluded that current landfill practices would mitigate the impacts from tritium released from any exit signs that may be disposed in landfills. These include: Cover systems that minimize rainfall penetration and limit the migration of tritium due to erosion or interaction with animals; cell liners that prevent leachate from leaking into the groundwater; gaseous extraction wells that remove gases building up within the landfill; and leachate collection systems that collect, process, and treat leachate.

In addition to reviewing these previously published reports and comparing tritium concentrations measured in leachate and drinking water to regulatory standards, the NRC reviewed the possible risks to landfill workers and the general public from exposure to tritium associated with landfill disposals. The NRC determined that tritium contamination involves such low levels of tritium that it would not pose a health and safety threat to the landfill worker or the general public.

The NRC is denying the petition for rulemaking because the NRC's current regulations in this area are adequate to protect public health and safety. In conclusion, the petitioner has not submitted any new information that indicates a health and safety issue that warrants rulemaking or calls into question the existing regulatory requirements. Existing NRC regulations provide reasonable assurance that public health and safety are adequately protected. For the reasons cited in this document, the NRC denies the petition.

I. Background

On July 21, 2011, the CFPB launched a system for accepting credit card complaints. The CFPB developed this system pursuant to several provisions of the Consumer Financial Protection Act of 2010 (the “Consumer Financial Protection Act” or the “Act”), including sections 1013(b)(3), 1025, 1034(a), and 1034(b), 12 U.S.C. 5493(b)(3), 5515 & 5534(a)-(b). Under this new system, consumers submit credit card complaints to the CFPB in several ways including via the CFPB's Web site,http://www.consumerfinance.gov.The system is presently limited to accepting credit card complaints from consumers.1 The CFPB is developing plans to roll out parallel systems for other consumer financial products and services.

As the system is presently configured, a consumer who submits a credit card complaint completes several non-narrative data fields. These include the consumer's name and address, the name of the issuing bank, and fields relating to the type of the complaint and claimed loss.2 Credit card consumers can also populate two narrative fields. These cover the consumer's description of “what happened” and the consumer's assessment of a “fair resolution.”

If the resulting complaint concerns a credit card issuer subject to the CFPB's supervision and primary enforcement under section 1025 of the Consumer Financial Protection Act, 12 U.S.C. 5515, the CFPB's Office of Consumer Response (“Consumer Response”) forwards the complaint to that identified issuer.3 If the receiving issuer indicates that it did not issue the relevant credit card, Consumer Response will attempt to forward the complaint to the correct issuer. Once the correct issuer has the complaint, the issuer investigates the complaint, communicates with the consumer as the issuer deems appropriate, and determines what action, if any, to take with respect to the complaint. At the end of this process, the issuer reports to Consumer Response how it has addressed the complaint.4 Once Consumer Response receives a response from the issuer, Consumer Response invites the consumer to review the response. The CFPB prioritizes for further action complaints where the consumer expresses dissatisfaction with the issuer's response or where the issuer fails to respond.

The Act requires the CFPB to provide certain information to Congress about complaints and responses. In particular, section 1013(b)(3)(C) requires the CFPB to report annually to Congress information and analysis about complaint numbers, types, and, when applicable, resolution.5 See12 U.S.C. 5493(b)(3)(C). Additionally, the Act permits the CFPB to exercise its authority for purposes of ensuring that “consumers are provided with timely and understandable information to make responsible decisions about financial transactions” and that “markets for consumer financial products operate transparently and efficiently.” 12 U.S.C. 5511(b)(1), (5).

The CFPB has broad authority to make public information that is not required to be given confidential treatment.See, e.g.,12 U.S.C. 5492(a); 12 U.S.C. 5512(c)(3)(B), (c)(8). On July 22, 2011, the CFPB issued an interim final rule governing disclosure of records and information, including treatment of confidential information.See76 FR 45372 (July 28, 2011) (to be codified at 12 CFR Part 1070). The rule defines “confidential consumer complaint information” as “information received or generated by the CFPB, pursuant to 12 U.S.C. 5493 and 5534, that comprises or documents consumer complaints or inquiries concerning financial institutions or consumer financial products and services and responses thereto, to the extent that such information is exempt from disclosure pursuant to [the Freedom of Information Act (“FOIA”),] 5 U.S.C. 552(b).”6 The rule generally prohibits the disclosure of confidential consumer complaint information, except in certain limited circumstances.7 However, the rule does not limit the CFPB's discretion to disclose materials that it derives from confidential information, including confidential consumer complaint information, to the extent that such materials do not identify, either directly or indirectly, any particular individual to whom the confidential information pertains.See12 CFR 1070.41(c).

The proposed Policy Statement does not contemplate the disclosure of confidential consumer complaint information. Under the proposed Policy Statement, the CFPB would not disclose information contained in consumer credit card complaints (and responses to such complaints) that is exempt from disclosure under the FOIA, 5 U.S.C. 552(b). The CFPB will not publish the name, full address, or credit card account number associated with any given credit card complaint. In addition, as discussed further below, our policy will be not to publish credit card complaint information that could enable the consumer to be identified by any party other than the issuer of the credit card in question. Further, the CFPB will not disclose confidential and proprietary business information that issuers provide in response to complaints. Because of these limitations, the CFPB's proposed publication of consumer complaint information pursuant to the Policy Statement does not rely upon any of the exceptions to the general prohibition on disclosure of confidential consumer complaint information.

FOIA requires general public disclosure of records that have been disclosed in response to a FOIA request and which the CFPB “determines have become or are likely to become the subject of subsequent requests for substantially the same records.” 5 U.S.C. 552(a)(2)(D). The CFPB's interim final rule regarding this provision of FOIA states that:

The CFPB's credit card complaint process has been widely publicized, and there is a high level of public interest in information regarding these complaints. As a result, the CFPB believes that its credit card complaint records may become subject to multiple, overlapping FOIA requests. The CFPB seeks comment on the interplay between the proposed Policy Statement and the possible application of the requirements of section 552(a)(2)(D) of FOIA.

The CFPB has developed the proposed Policy Statement in light of its statutory purposes of helping to provide consumers with “timely and understandable information to make responsible decisions about financial transactions” and helping the credit card market to “operate transparently and efficiently.” 12 U.S.C. 5511(b)(1) & (5). We have separated the issue of disclosure of the narrative fields of complaint data from disclosure of the non-narrative fields. These issues implicate discrete considerations.

We have reviewed disclosure practices at other Federal and state agencies, the complaint-handling experience of other financial regulators, and the positions of different stakeholders as they have been voiced to the CFPB to date. As noted, the proposed Policy Statement only covers the disclosure of certain credit card complaint data. Disclosing data on other types of complaints may raise different considerations that are not addressed by the proposed Policy Statement. Furthermore, the proposed Policy Statement does not concern the CFPB's internal uses of complaint data nor is it intended to limit the CFPB's discretion to share complaint data as otherwise permitted by law.

The CFPB will carefully consider comments it receives in response to this notice and its continued experience with the operation of the CFPB's credit card complaint system before finalizing the Policy Statement. Once the CFPB finalizes this Policy Statement, we will study its effectiveness on an ongoing basis. In addition to seeking comments on the proposed Policy Statement, the CFPB also invites comment on the appropriate ways to study the effectiveness of credit card complaint data disclosure. Although the present Policy Statement is limited to credit card complaints, what the CFPB learns about disclosure in this context may serve to inform disclosure of complaint data about other financial products and services.

There is considerable controversy over the extent to which credit card consumer complaint data can provide consumers with useful or reliable information for making decisions about credit card use. Credit card complaints, of course, are not necessarily representative of the experience of all consumers with a particular credit card product or issuer. Rather, the credit card complaints submitted to the CFPB represent the experience of a non-random subset of credit card consumers: Those who view themselves as aggrieved by an action or inaction of an issuer, who were unable to obtain satisfactory relief from the issuer (or who elected not to seek such relief), and who have chosen to appeal to the CFPB for assistance. Some argue, therefore, that making information about these complaints publicly available has the potential to provide information to consumers that is not reliable or probative.

Others argue that by examining trends and patterns in consumer credit card complaints over time, or by examining differences in credit card complaint patterns across issuers, careful researchers may be able to discern information that would be useful and relevant to consumers in making better-informed decisions among payment devices or between credit card issuers. In this view, even though the experience of complainants is not necessarily representative of the experience of all consumers, changes in the volume or mix of complaints, or differences across issuers and complaint types, can illuminate important patterns or trends in the marketplace.

The CFPB anticipates that if it disclosed credit card complaint data, those who would be most likely to mine the data for trends and patterns and to publish their conclusions would be academics and groups dedicated to empowering consumers in making well-informed decisions.9 Of course, there may be differences of opinion as to the inferences or conclusions reached by these individuals and groups based upon their review of complaint data. To the extent that there are differences in opinion, the CFPB expects that those differences will be publicly aired in a way that will enable consumers who are interested in this data to evaluate the alternative interpretations and reach their own conclusions.

Our expectation gains support from the experience of other agencies that have made consumer complaint data publicly available. Outside groups have already used complaint field data published by another Federal agency—the National Highway Traffic Safety Commission (“NHTSA”)—to assemble trend and pattern data for consumers. Beginning with 2005 data, one private provider of automotive information has recompiled all the individual consumer complaints lodged with safercar.gov, the vehicle safety complaint database that NHTSA maintains.10

Outside groups also make regular use of airline passenger complaint data that the Department of Transportation's Office of Aviation Enforcement and Proceedings (“OAEP”) discloses every month in itsAir Travel Consumer Report. 11 Unlike NHTSA, OAEP does not make field data available at the individual complaint level, but instead publishes its own aggregations of fielddata.12 The use to which outside groups have put this data show how organizations might use the non-narrative field data that CFPB proposes to disclose. Providers that have scored well in the OAEP data have publicized that fact to consumers. One airline notes that it has “consistently received the lowest ratio of complaints per passengers boarded of all major U.S. carriers” since the OEAP began publishing theAir Travel Consumer Report. 13 Outside reviewers have also publicized poor or worsening airline performance.14 The annual Airline Quality Rating reports rate U.S. and other airlines using numerous data sources including the OAEP's complaint data. These findings reportedly reach millions of consumers every year.15 In all these respects, OAEP provides the critical field data. The marketplace of ideas then does the rest.

The Consumer Product Safety Commission (“CPSC”) began making consumer reports of harm publicly available in March, 2011. It is too early to assess how researchers will use the data in the CPSC's public database,saferproducts.gov. 16 As described in a recent report prepared by the General Accounting Office, product manufacturers or their representatives have expressed concern that reports in the database may misidentify products or manufacturers and that reports can be submitted by individuals who did not experience the reported incident of harm.17 Neither concern applies to the CFPB's credit card complaint data. Credit card complaints are filed by cardholders (or by an authorized representative). The issuer of the applicable credit card can be reliably identified from the submitted credit card number.

In light of the potential for credit card complaint data to be analyzed for information that would be useful to consumers, and the experience of other agencies, the proposed Policy Statement calls for two forms of public disclosure with respect to the non-narrative fields of consumer credit card complaint data. These two forms of public disclosure are discussed below.

The CFPB proposes to make certain fields of the non-narrative complaint data available to the public in fully searchable and downloadable format. To protect consumers' privacy, the database will not include non-narrative fields that expressly call for personally identifying information (“PII”) (i.e.,the name and address fields). The database will include data fields that cover the type of complaint, the issuer involved, the date of the complaint, and the zip code of the consumer.18 The disclosed field data for each complete complaint will be linked by a unique identifier, enabling outside reviewers to aggregate and correlate the data as they wish. The CFPB intends to provide, with each data release, information about the limitations of the data disclosed, including appropriate disclaimers as to accuracy and representativeness.19

In addition to making certain credit card complaint data available for research and analysis, the CFPB proposes to publish periodic reports about trends and patterns in complaint data that will give consumers meaningful information about credit card use. These reports also will explain how we use credit card complaint data to work towards other goals that Congress has set for us. On November 30, 2011 the CFPB published an interim report that addressed Consumer Response's handling of credit card complaints received during the first three months of the complaint system's operation. Going forward, our reports may contain additional data aggregations, as explained further below.

The precise data aggregations that CFPB publishes will depend on our assessment of what conclusions can fairly be drawn from the data for a given reporting period. It is possible, for example, that we will not receive enough credit card complaints in any given time period to generate useful information with respect to some potential aggregations. If sample sizes are too small, variations across issuer, time, and subject matter may not reflect statistically significant patterns and trends. We will be mindful of these statistical significance issues in determining what types of trend and pattern data to report and on what schedule.

We have also identified a number of questions that will need to be answered in deciding whether to publish certain specific data aggregations. We invite comment on how these questions may be answered.

First, some trend and pattern data may need context to make the data informative to consumers. Complaint counts by issuer are one apparent example. Unless weighted appropriately against the relative size of an issuer's credit card business—a process commonly referred to as “normalization”—their disclosure may not offer consumers any meaningful information. The CFPB invites comment on how best to address this issue, including whether there is an available and appropriate normalization metric for these purposes.

Second, some products may, by their very nature, have higher complaint rates than others, even across all issuers that offer them. As a result, these products could cause issuers' complaint incidence to vary more by product mix than by performance. The CFPB invites comment on how best to address this issue, including whether there is an available and appropriate normalization metric for these purposes.

Third, data on the rate at which the CFPB procures relief for consumers in response to credit card complaints may not be meaningful if broken out by issuer. If an issuer has a relatively low rate of offering responses that consumers accept, that may reflect its failure to respond to legitimate grievances. However, it may instead reflect that the issuer has effective internal complaint processes and/or low-complaint products, causing the complaints that reach the CFPB to lack merit. The CFPB invites comment on how best to address this issue.

The CFPB's consumer credit card complaint form includes narrative fields in which the consumer is asked to describe “what happened” and a “fair resolution.” The issuer is also invited to submit a narrative response to the complaint. Some Federal agencies—most notably the CPSC, pursuant to the Consumer Product Safety Improvement Act of 2008—maintain consumer databases that include consumer and industry narratives. Disclosure of narrative fields, however, would be unlikely to facilitate statistical analyses of trends or patterns in the credit card complaint data. In addition, although disclosure of the narrative fields would allow those who review the complaint data to gain more insight into the substance of complaints than can be gleaned from the field that categorizes complaints by issue type, it might also expose issuers to reputational harm from potentially inaccurate, misleading, or incomplete narratives.

For the time being, the CFPB need not resolve the tension between these competing interests, because disclosing these narrative fields would pose clear risks to privacy interests and to the functioning of the consumer complaint system. The narrative fields are populated entirely at the discretion of the consumer and the issuer. The resulting narratives may include core PII such as the name of the complainant. Moreover, there is a risk that the information contained in the narratives may contain detailed and idiosyncratic information of a type that, if made public, would enable some reviewers of that information to identify the consumer who submitted the complaint.

Publishing narratives could also discourage consumers from providing information in the narrative fields that might carry some risk of identification. Because such information might be useful to the resolution of some complaints, that result could disserve the CFPB's primary goal with respect to complaints, which is to address each consumer's complaint efficiently and effectively. It could also discourage consumers from submitting complaints, hindering the complaint resolution process and also restricting the supply of credit card complaint data.20 Publishing narratives only if a consumer affirmatively opts in to—or fails to opt out of—publication might alleviate this problem.21 The CFPB invites comment on the impact of a consumer opt-in (or, in the alternative, a consumer opt-out) on the merits of disclosing narrative data. The CFPB also seeks comment on whether issuers should have a parallel ability to opt into or out of publication of narrative responses, or the ability to provide a public and non-public response to a complaint.

Ultimately, however, the privacy risks cannot be systematically assessed other than by reviewing the complaints and issuer responses that we receive. The CFPB will conduct the necessary comprehensive study and will continue to gather data from submitted complaints as the complaint process further develops. As part of that study, the CFPB also will evaluate the CFPB resources that would be required to redact such information so as to eliminate PII and minimize the risk of identification. In the interim, the CFPB will not disclose narratives because of the potentially significant risk to consumers' privacy interests.

The text of the proposed Policy Statement is as follows:

The CFPB receives credit card complaints from consumers. The CFPB intends to disclose certain information about credit card complaints in a public database and in the CFPB's own periodic reports.

The purpose of this disclosure is to provide consumers with timely and understandable information about credit cards and to improve the functioning of the credit card market. By enabling more informed decisions about credit card use, the CFPB intends for its complaint data disclosures to improve the transparency and efficiency of the credit card market.

After the effective date of this Policy Statement, the CFPB will provide public access to a database containing non-narrative fields for each complete consumer credit card complaint and response within the scope of the CFPB's authority under section 1025 of the Consumer Financial Protection Act. The consumer defines the inputs to some of the fields when he or she (or an authorized representative) inputs a credit card complaint into the CFPB's system. These fields, therefore, represent the consumer's own characterization of his or her credit card complaint. The issuer's response will define other non-narrative fields.

The database will cover non-narrative fields that do not contain confidential personal information, including but not limited to: The subject area or areas covered by the credit card complaint; the name of the card issuer; the zip code in which the consumer lives; the date of the complaint; and whether and how an issuer responded.

In cases where an issuer represents to the CFPB that it has been wrongly identified as the issuer of a card, that issuer's name will not be disclosed pending a determination of the correct issuer. Once the CFPB identifies the correct issuer, the name of that issuer will be included.22

The public will have online access to the database. The database will enable user-defined searches. The fields for each complaint will be linked with a unique identifier, enabling reviewers to aggregate the data as they choose, including by complaint type, issuer, location, date, or any combination of these variables. Users also will be able to download the data so that they can carry out additional review.

The CFPB will update the database on a regular basis. To provide an issuer sufficient time to establish that it did not issue the credit card listed in a particular complaint, the update will not take place until at least one month after submission.

The public database will not include a consumer's name, credit card number, or address details. At least until the CFPB can conduct further study, it will exclude the consumer's narrative description of “what happened” and of “fair resolution.” It also will exclude an issuer's narrative response. These narrative fields may contain personally identifiable information or other information that could enable identification. The threat of such disclosure might also suppress complaints or reduce the specificity of complaint narratives, thereby undermining the effectiveness of the complaint process.

At periodic intervals, the CFPB will publish reports about the consumer credit card complaints that it handles.The reports may contain our analysis of patterns or trends that we identify in the complaint data. The CFPB intends for its reporting to provide information that will be valuable to consumers and other market participants. Before determining what reports to issue beyond those relating to the CFPB's handling of the complaints, the CFPB will study the volume and content of credit card complaints that it has received in a given reporting period for patterns or trends that it is able to discern from the data. If the data will support it, the CFPB intends for its reports to include some standardized metrics that would provide comparisons across reporting periods. The reports will also describe our use of credit card complaint data across the range of our statutory authorities during a reporting period.

Going forward, the CFPB intends to study the effectiveness of its credit card complaint disclosure policy in realizing its stated purposes. In addition, the CFPB will carry out a study of the narrative fields submitted by consumers and issuers. The study will assess whether there are practical ways to disclose narrative data in a manner that will improve consumer understanding without undermining privacy interests or the effectiveness of the credit card complaint process and without creating unwarranted reputational injury to issuers.

Background

The correction notice that is the subject of this document is under section 414(d) of the Internal Revenue Code.

As published, this advance notice of proposed rulemaking (REG-157714-06) contains errors that may prove to be misleading and are in need of clarification.

Accordingly, the publication of this advance notice of proposed rulemaking (REG-157714-06), which was the subject of FR Doc. 2011-28853, is corrected as follows:

1. On page 69173, column 3, in the preamble, under the paragraph heading “Explanation of Provisions”, second paragraph, third line, the language “States or an agency of instrumentality of” is removed and is replaced with the new language “States or an agency or instrumentality of”.

2. On page 69175, column 1, in the Appendix, under the paragraph heading “Application of Section 414(d)”,fifth paragraph, the language “Section 503(a)(1) (applying the prohibited transactions rules in section 503 to governmental plans as defined in section 4975(g)(2))” is removed and is replaced with the new language “Section 503(a)(1) (applying the prohibited transaction rules in section 503 to governmental plans as defined in section 4975(g)(2));”.

3. On page 69177, column 2, footnote 17, fourth line, the language “401(k) plan. See section 401(K)(4)(B)(ii). There is an” is removed and is replaced with the new language “401(k) plan. See section 401(k)(4)(B)(ii). There is an”.

4. On page 69179, column 3, footnote 27, eleventh line, the language “Louis,420 F. Supp.2 at 1024, citingLee Const. Co.,”is removed and is replaced with the new language “Louis,420 F. Supp.2d at 1024, citingLee Const. Co.,”.

Background

The correction notice that is the subject of this document is under section 414(d) of the Internal Revenue Code.

As published, this advance notice of proposed rulemaking (REG-133223-08) contains errors that may prove to be misleading and are in need of clarification.

Accordingly, the publication of this advance notice of proposed rulemaking (REG-133223-08), which was the subject of FR Doc. 2011-28858, is corrected as follows:

1. On page 69192, column 1, footnote 10, the language “Section 401(k)(4)(B)(ii) provide that a cash or deferred arrangement shall not be treated as a qualified cash or deferred arrangement if it is part of a plan maintained by a State or local government of political subdivision thereof, or any or agency or instrumentality thereof.” is removed and is replaced with the new language “Section 401(k)(4)(B)(ii) provides that a cash or deferred arrangement shall not be treated as a qualified cash or deferred arrangement if it is part of a plan maintained by a State or local government of political subdivision thereof, or any agency or instrumentality thereof.”.

2. On page 69193, column 1, under the paragraph heading “Judicial Determinations”,second paragraph of the column, second line, the language “Bingo & Casino,held that the operating” is removed and is replaced with the new language “Bingo & Casino,held that operating”.

In response to our second notice, we received three responses recommending three additional members to the Committee. In response, we have added the following three recommended members to the Committee: Patrick Flynn, employee of Resolute Energy Corporation, representative of Industry; Grinnell Day Chief, representative of the Blackfeet Nation; Alan Taradash, representative of the Jicarilla Apache Nation.

One additional comment was received in response to the second notice of intent offering broad objections to the composition of the Committee. In particular, the commenter felt the Committee did not represent all significant interests, did not represent global energy producer interests, included members from the oil industry with conflicts of interest, and should not have had inclusion from the Bureau of Indian Affairs (BIA).

While ONRR appreciates and encourages interest in the Indian Oil Valuation Negotiated Rulemaking Committee, at this time we find it unnecessary to reconstitute or make significant changes to the committee. On January 31, 2011, ONRR solicited nominees for membership to the Committee. On August 22, 2011, ONRR solicited additional nominees. This provided the commenter two opportunities to nominate a member that would represent the significant interests he felt were omitted. ONRR believes it has adequately met the intent of the Federal Advisory Committee Act (FACA) in soliciting membership and finding members with an appropriate balance of viewpoints. ONRR also notes that the Committee is being formed to address valuation of oil production from domestic Indian oil leases. Global energy interests are most likely unconcerned with the subject of this Committee and no nominations were offered to represent these interests. Likewise, the proposed representatives from industry were nominated by their constituents and have an undeniable stake in the rulemaking process. Any perceived conflict of interest on the part of industry's nominations was not adequately described by the commenter. While the commenter noted that the oil industry members have conflicts of interest, this is expected of “representative” members of a FACA committee. These members serve as representatives of outside entities or groups and their exclusive function is to represent the points of view of a particular industry or group (e.g. labor, agriculture, energy, environmental, tribal, or some other recognizable group of persons). In representing the interests of a specifically identifiable interest group, the opinions, information, and advice these members offer will reflect the biases of the particular group that the member represents on the Committee. ONRR firmly believes that the interests significantly affected by the rulemaking are represented by the members.

Finally, the Committee was formed within the terms of the FACA which provides for government oversight over FACA committees. In the case of this Committee, ONRR believes that BIA belongs on the Committee, because BIA issues leases and is the office of record maintaining surface and mineral ownership records on Indian Trust lands.

The Committee will meet at least quarterly with the first meeting planned for February 2012.

Certification Statement:I hereby certify that the Indian Oil Valuation Negotiated Rulemaking Committee is necessary, is in the public interest, and is established under the authority of the Secretary of the Interior.

Public Participation and Request for Comments

We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted, without change tohttp://www.regulations.govand will include any personal information you have provided.

If you submit a comment, please include the docket number for this rulemaking (USCG-2011-0943), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (http://www.regulations.gov), or by fax, mail or hand delivery, but please use only one of these means. If you submit a comment online viahttp://www.regulations.gov,it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand deliver, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an email address, or a phone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go tohttp://www.regulations.gov,click on the “submit a comment” box, which will then become highlighted in blue. In the “Document Type” drop down menu select “Proposed Rules” and insert “USCG-2011-0943” in the “Keyword” box. Click “Search” then click on the balloon shape in the “Actions” column. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2by 11 inches, suitable for copying and electronic filing. If you submit them by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change the rule based on your comments.

To view comments, as well as documents mentioned in this preamble as being available in the docket, go tohttp://www.regulations.gov,click on the “read comments” box, which will then become highlighted in blue. In the “Keyword” box insert “USCG-2011-0943” and click “Search.” Click the “Open Docket Folder” in the “Actions” column. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. We have an agreement with the Department of Transportation to use the Docket Management Facility.

Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of theFederal Register(73 FR 3316).

We do not now plan to hold a public meeting. But you may submit a request for one using one of the four methods specified underADDRESSES. Please explain why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in theFederal Register.

Virginia Department of Transportation has requested a change in the operation regulation of the S189 Bridge across Blackwater River, mile 9.2, at South Quay VA. There has been no request for openings since the year 2000. The only industrial waterway user to request openings left the area in 2000. Since 2008 up to the present day the average daily vehicular count is approximately 2,930. The Coast Guard proposes to allow the above mentioned bridge to remain in the closed position to navigation in accordance with 33 CFR 117.39.

The vertical clearance of the Swing Bridge is 14 feet above mean high tide in the closed position and unlimited in the open position. The current operating schedule for the bridge is set out in 33 CFR 117.999. The current 24 hour advance notice is no longer necessary because of the lack of openings.

The Coast Guard proposes to revise 33 CFR 117.999 for the S189 Bridge over Blackwater River, mile 9.2, at South Quay, VA. The current regulation states: The draw of the S189 bridge, mile 9.2 at South Quay, shall open on signal if at least 24 hours notice is given. The new regulation would allow the bridge to not open for the passage of vessels. The change of the operating regulation would reflect the current use of the waterway and vessels with a mast height less than 14 feet can pass underneath the bridge in the closed position at anytime.

We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.

This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not requirean assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866. The Office of Management and Budget has not reviewed it under that Order. The proposed change is expected to have minimal impact on mariners due to no opening request for the past 11 years and no anticipated change to vessel traffic.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. This proposed rule would affect the following entities, some of which might be small entities: the owners or operators of vessels needing to transit the bridge that cannot pass under the bridge in the closed position. This action will not have a significant economic impact on a substantial number of small entities for the following reasons. There have been no vessel requests for openings for the past 11 years. Vessels that can safely transit under the bridge may do so at any time.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (seeADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Jim Rousseau, Bridge Management Specialist, Fifth Coast Guard District, (757) 398-6557 or emailJames.L.Rousseau2@uscg.The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or Tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule will not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This proposed rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.

This proposed rule does not have Tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would 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.

We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g.,specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01, and Commandant Instruction M16475.lD which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment because it simply promulgates the operating regulations or procedures for drawbridges. We seek any comments orinformation that may lead to the discovery of a significant environmental impact from this proposed rule.

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 117 as follows:

Public Participation and Request for Comments

We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted, without change tohttp://www.regulations.govand will include any personal information you have provided.

If you submit a comment, please include the docket number for this rulemaking (USCG-2011-1013), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (http://www.regulations.gov), or by fax, mail or hand delivery, but please use only one of these means. If you submit a comment online viahttp://www.regulations.gov,it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand deliver, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an email address, or a phone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go tohttp://www.regulations.gov,click on the “submit a comment” box, which will then become highlighted in blue. In the “Document Type” drop down menu select “Proposed Rules” and insert “USCG-2011-1013” in the “Keyword” box. Click “Search” then click on the balloon shape in the “Actions” column. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2by 11 inches, suitable for copying and electronic filing. If you submit them by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change the rule based on your comments.

To view comments, as well as documents mentioned in this preamble as being available in the docket, go tohttp://www.regulations.gov,click on the “read comments” box, which will then become highlighted in blue. In the “Keyword” box insert “USCG-2011-1013” and click “Search.” Click the “Open Docket Folder” in the “Actions” column. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. We have an agreement with the Department of Transportation to use the Docket Management Facility.

Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of theFederal Register(73 FR 3316).

We do not now plan to hold a public meeting. But you may submit a request for one using one of the four methods specified underADDRESSES. Pleaseexplain why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in theFederal Register.

Lake Carriers Association (LCA), an organization representing U.S. shipping companies on the Great Lakes, requested that the existing drawbridge regulation for Saginaw River be reviewed and changed to make the regulation easier to understand and to remove restrictive drawbridge schedules for commercial vessels. The existing regulation was reviewed in its entirety for all drawbridges, vessel types, dates, and hours of operation.

Lake State Railway Bridge at mile 3.10 is a swing bridge that provides 7 feet vertical clearance in the closed position and unlimited clearance in the open position. The Independence Bridge at mile 3.88 is a bascule bridge that provides 22 feet vertical clearance in the closed position and unlimited clearance in the open position. The Central Michigan Railroad Bridge at mile 4.94 is a swing bridge that provides 8 feet of vertical clearance in the closed position and unlimited clearance in the open position. The Liberty Street Bridge at mile 4.99 is a bascule bridge that provides 25 feet of vertical clearance in the closed position and unlimited clearance in the open position. The Veterans Memorial Bridge at mile 5.60 is a bascule bridge that provides 15 feet of vertical clearance in the closed position and unlimited clearance in the open position. The Lafayette Street Bridge at mile 6.78 is a bascule bridge that provides 20 feet vertical clearance in the closed position and unlimited clearance in the open position. There is no alternate waterway for vessels entering or departing Saginaw River.

The draws of the Lake State Railway and CN RR bridges currently open on signal for all vessel traffic that requires a bridge opening, except that from December 16 through March 15 the bridges open on signal if at least 12 hours advance notice is provided.

The draws of the Independence Street, Liberty Street, Veterans Memorial, and Lafayette Street drawbridges open on signal from March 16 through December 15, except as follows: the draws need not open for the passage of vessels less than 50 gross tons from 6:30 a.m. to 8:30 a.m. and 3:30 p.m. to 5:30 p.m., except Saturdays, Sundays, and holidays observed in the locality. The draws need not open for the passage of downbound vessels over 50 gross tons from 7:30 a.m. to 8:30 a.m. and 4:30 p.m. to 5:30 p.m., except on Sundays, Federal holidays, and holidays observed in the locality. From 8 a.m. to 8 p.m. on Saturdays, Sundays, and Federal holidays, the Independence Street and Veterans Memorial bridges need not open for recreational vessels except from three minutes before to three minutes after the hour and half-hour, and the Liberty Street and Lafayette Street bridges need not open for recreational vessels except from three minutes before to three minutes after the quarter-hour and three-quarter hour. Currently, the draws of these bridges shall open on signal from December 16 through March 15 if at least 12 hours advance notice is provided.

The proposed drawbridge schedules and revised regulation were developed with all known stakeholders, including; LCA, Canadian Shipowners Association, local Coast Guard units, City of Bay City, MI, Michigan Department of Transportation (MDOT), Bay Harbor Marina, Pier 7 Marina, Liberty Harbor Marina, and Bay City Yacht Club. All parties have preliminarily concurred with the proposed drawbridge schedules and language.

The preliminary investigation conducted during the development of this proposed rule found that marine traffic on Saginaw River consists of large commercial, small commercial, and both power and sail recreational vessels. Large commercial vessel traffic usually operates from the beginning of April until the end of December. Recreational and small commercial vessel traffic usually operates between April 15 and November 1, and generally increases on the weekends. Vehicular traffic has been reduced in the past 20 years following the closure of industrial and manufacturing facilities in Bay City/Saginaw, including reduced vehicular traffic on weekends when recreational vessel traffic increases.

Under the current regulation, the highway drawbridges are not required to open for recreational vessels from 6:30 a.m. to 8:30 a.m., and from 3:30 p.m. to 5:30 p.m., 7 days a week. Additionally, they are not required to open from 7:30 a.m. to 8:30 a.m. and 4:30 p.m. to 5:30 p.m., Monday through Saturday, for the passage of downbound vessels over 50 gross tons (all large commercial vessels). The proposed rule will allow large commercial vessels to obtain bridge openings at any time, and allow recreational vessels to pass on two scheduled times each hour between 6:30 a.m. and 7 p.m., Monday through Friday, and at any time during all other days and times, thereby increasing access through all drawbridges for all vessel traffic. Furthermore, the dates for winter operation of all drawbridges have been adjusted to reflect the current seasonal operations for both commercial and recreational vessels. Currently, vessels are required to provide at least 12-hours advance notice of arrival between December 16 and March 15. The proposed schedule will require 12-hour advance notice of arrival between January 1 and March 31.

The proposed drawbridge regulation was developed to reflect the current conditions and needs of both vessel and vehicular traffic, and was coordinated with all known stakeholders and entities in Bay City/Saginaw, MI. The proposed regulatory language is more concise and easier to understand, has been preliminarily approved by all known entities included in the development of the proposed rule, and is expected to provide for the reasonable balance of all modes of transportation.

We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.

This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866. The Office of Management and Budget has not reviewed it under those Orders. This determination is based upon the Coast Guard's expectation that this proposed rule will improve traffic congestion and safety in the vicinity of the drawbridge and does not exclude bridge openings for vessel traffic.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rulewould not have a significant economic impact on a substantial number of small entities. The proposed rule would affect the following entities, some of which might be small entities: the owners and operators needing to transit the bridges. However, this action will not have a significant economic impact on a substantial number of small entities for the following reasons. This rule will increase access through the drawbridges for all entities compared to the existing regulation and drawbridge schedule. All known marina owners and small entities were consulted during the development of this proposed rule and have preliminarily concurred with the proposed drawbridge schedule. Additionally, all vessels that do not require bridge openings may transit the drawbridges at any time.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (seeADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Mr. Lee D. Soule, Bridge Management Specialist, U.S. Coast Guard, telephone (216) 902-6085, emaillee.d.soule@uscg.mil,or fax (216) 902-6088. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or Tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This proposed rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.

This proposed rule does not have Tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would 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.

We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01, and Commandant Instruction M16475.lD which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment because it simply promulgates the operating regulations or procedures for drawbridges. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

For the reasons discussed in the preamble, the Coast Guard proposes to revise 33 CFR part 117 as follows:

In FR Vol. 76, No. 232, USCG 2011-0959, appearing on page 75507 in the issue of Friday, December 2, 2011, the following correction is made:

1. On page 75507, in the first column, in the one place that “December 19, 2011” appears, remove “December 19, 2011” and replace with “December 15, 2011”.

The (Section 508) Electronic and Information Technology Accessibility Standards (standards) were issued in December 2000, 65 FR 80500 (December 21, 2000). The (Section 255) Telecommunications Act Accessibility Guidelines (guidelines) for telecommunications equipment and customer premises equipment were issued in February 1998, 63 FR 5608 (February 3, 1998). The standards require that when developing, procuring, maintaining, or usingelectronic and information technology, each federal department or agency must ensure, unless an undue burden would be imposed on the department or agency, that electronic and information technology (regardless of the type of medium) allows individuals with disabilities to have access to and use of information and data that is comparable to the access to and use of the information and data by others without disabilities. The standards include a definition of electronic and information technology, and technical and functional performance criteria for such technology. The Section 255 guidelines require telecommunications manufacturers to ensure that telecommunications equipment and customer premises equipment are designed, developed, and fabricated to be accessible to and usable by individuals with disabilities when it is readily achievable to do so. The term readily achievable is defined in the guidelines as easily accomplishable, without much difficulty or expense.

Section 508 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794 (d) (Section 508) and the Telecommunications Act of 1996, 47 U.S.C. 153, 255 (Section 255) require that the Access Board periodically review and, as appropriate, amend the standards and guidelines to reflect technological advances or changes in electronic and information technology or in telecommunications equipment and customer premises equipment. Once revised, the Board's standards and guidelines are made enforceable by other federal agencies. Section 508(a)(3) of the Rehabilitation Act provides that within 6 months after the Access Board revises its standards the Federal Acquisition Regulatory Council shall revise the Federal Acquisition Regulation and each appropriate federal department or agency shall revise their procurement policies and directives, as necessary, to incorporate the revisions. Under Section 255 of the Telecommunications Act of 1996, the Federal Communications Commission has the authority to adopt regulations implementing Section 255 including adopting rules consistent with the Access Board's guidelines.

Since the Board first issued the guidelines and the standards, technology has evolved and changed. Therefore, the Board decided to update and revise the guidelines and the standards together to address changes in technology and to make both documents consistent. The Board formed the Telecommunications and Electronic and Information Technology Advisory Committee (TEITAC) in 2006 to review the existing guidelines and standards and to recommend changes. TEITAC's 41 members comprised a broad cross-section of stakeholders. The stakeholders included representatives from industry, disability groups, standard-setting bodies in the U.S. and abroad, and government agencies. TEITAC also included representatives from the European Commission, Canada, Australia, and Japan. TEITAC recognized the importance of standardization across markets worldwide. It coordinated its work with standard-setting bodies in the U.S. and abroad, such as the World Wide Web Consortium (W3C). TEITAC members addressed a range of issues, including new or convergent technologies, market forces, and international harmonization.

On April 3, 2008, TEITAC presented its report to the Board. The report recommended revisions to the Board's Section 508 standards and Section 255 guidelines. The report is available on the Board's Web site athttp://www.access-board.gov/sec508/refresh/report/.

The Board developed an Advance Notice of Proposed Rulemaking (2010 ANPRM) based on the TEITAC report. The ANPRM was published in theFederal Registerin March 2010, 75 FR 13457 (March 22, 2010). The Board held two public hearings and received 384 comments on the 2010 ANPRM. This 2011 ANPRM is based on a review of those comments.

The 2010 ANPRM also included a proposal to amend the Americans with Disabilities Act (ADA) Accessibility Guidelines to extend coverage of the guidelines to a variety of self-service transaction machines not previously covered by the guidelines. The Board plans to address this subject at a future date and has not included a proposal in this ANPRM to address such machines subject to the ADA.

The 2010 ANPRM contained proposed updates under consideration by the Board to the requirements for Section 508 and Section 255 and was organized into eleven chapters. The first two chapters were separate introductory chapters (508 chapter 1 and 255 chapter 1) outlining scoping, application, and definitions unique to each law. The remainder of the chapters comprised a common set of requirements. The ANPRM used the term “Information and Communication Technology” (ICT), recommended by TEITAC to describe electronic and information technology covered by Section 508 and telecommunications products, interconnected Voice over Internet Protocol (VoIP) products and Customer Premises Equipment (CPE) covered by Section 255. The new term which was defined in E111 and C109 is consistent with terms previously included in the standards and guidelines but it more accurately describes covered features of electronic and information technology, telecommunications and VoIP products, and CPE. The term ICT is widely used in the public sector and by most other countries. The functional performance criteria and technical requirements set forth in the 2010 ANPRM were intended to apply to ICT subject to either the Rehabilitation Act or the Telecommunications Act of 1996.

508 Chapter 1 contained purpose and application provisions for Section 508 and explained how those provisions are applied to ICT subject to Section 508. The chapter explained how the provisions implement the requirement under Section 508 that federal agencies must ensure that the technology is accessible to people with disabilities, unless an undue burden would be imposed on the department or agency. The meaning of the term “undue burden” remains unchanged. Consistent with Section 1194.4 of the standards, undue burden means significant difficulty or expense to the agency after considering all the agency resources available to the program or component for which the product is being developed, procured, maintained, or used.

255 Chapter 1 contained purpose and application provisions for Section 255 and how that is applied to telecommunications and interconnected VoIP products and CPE subject to Section 255. The chapter explained how the provisions implement the requirement under Section 255 that telecommunications manufacturers must ensure that telecommunications equipment and customer premises equipment are designed, developed, and fabricated to be accessible to and usable by individuals with disabilities when it is readily achievable to do so. An action that is “readily achievable” can be easily accomplished by a manufacturer without much difficulty or expense.

Chapter 2 included functional performance criteria requiring ICT to provide access to all functionality in at least one of each of the eleven specified modes.

Chapter 3 contained technical requirements applicable to features of ICT that are found across a variety of platforms, formats, and media. Chapters 4, 5, and 6 all contained technical requirements closely adapted from the Web Content Accessibility Guidelines (WCAG) 2.0 Success Criteria whichwere rephrased in mandatory language. Chapter 4 addressed platforms, applications, interactive content, and applications. Chapter 5 covered access to electronic documents and common interactive elements found in electronic content and Chapter 6 addressed access to audio and visual electronic content and to players of that content. Chapter 7 addressed hardware aspects of ICT, such as standard connections and reach ranges. Chapter 8 addressed ICT that has audio output functionality when that output is necessary to inform, alert, or transmit information or data. Chapter 9 addressed ICT that supports a real time simultaneous conversation. This conversation may be in an audio, text, or video format. Chapter 10 covered product support documentation and services.

Three hundred eighty-four comments were received during the comment period. Comments came from industry, federal and state governments, foreign and domestic companies specializing in information technology, disability advocacy groups, manufacturers of hardware and software, trade associations, institutions of higher education, research and trade organizations, accessibility consultants, assistive technology industry and related organizations, and concerned individuals who did not identify with any of these groups.

In general, commenters agreed with the Board's approach to address the accessibility features of ICT and not discrete product types. The commenters also expressed strong support for the decision to follow the TEITAC recommendation to require harmonization with WCAG 2.0. In addition they strongly supported the Board's efforts to update the standards to address current technology. However, they raised concerns about the overall length of the document and its organization. Many commenters stated that it was unwieldy and difficult to use at close to 100 pages. They reported that the organization of the material did not add to their understanding of how to apply the requirements. They indicated that the relationship of the chapters to one another was unclear because every chapter seemed to use the term ICT differently, based on the functions addressed by the chapter. Commenters noted that some chapters focused on functional features of accessibility and others addressed specific types of technology. They found that this inconsistency within the document made reading and comprehension difficult.

Commenters from industry and government criticized the approach taken for harmonization with WCAG 2.0. The rephrasing of Success Criteria from WCAG 2.0 into regulatory language introduced subtle changes that called into question the suitability of the wealth of guidance material developed specifically for WCAG 2.0. Commenters in general were confused about how the Board distinguished between software and documents. Commenters were also confused about the emphasis given to some topics, which were addressed over an entire chapter, while other equally complex topics were addressed in a group of provisions. Many commenters also indicated that the use of advisories throughout the document was unclear and inconsistent, because some provisions had extensive advisories while others had none. Government and industry information technology professionals raised concerns about how some of the provisions could be implemented so that they could successfully determine if ICT is conformant. Persons responsible for procurements, as well as commenters representing individuals with disabilities questioned how conformance with provisions guaranteed actual access to and use of information and data by individuals with disabilities.

Most commenters wanted clarification of the Board's approach to covering electronic content. In addition, many commenters asked for a clearer explanation of the relationship of the functional performance criteria to the technical requirements. In general, commenters criticized the provisions for closed functionality for a lack of substance which made the provisions vague and confusing. Overall, commenters generally favored the Board's approach to streamlining the exceptions to the technical and functional performance criteria. However, a significant number of commenters from government and industry strongly opposed removing the maintenance spaces exception for ICT located in spaces frequented only by service or maintenance personnel. Other commenters, many from government, expressed confusion over the reorganization of the “incidental to a contract” exception as a subset of a provision on federal contracts.

Upon reviewing the comments, the Board sees that the 2010 ANPRM needed major revisions in terms of both structure and content. The Board also recognizes the need to obtain more guidance on certain issues from those affected by the requirements. At the same time, the Board is interested in harmonizing with standards efforts around the world in a timely way. Accordingly, the Board is now releasing this second Advance Notice of Proposed Rulemaking (2011 ANPRM) to seek further public comment on specific questions and to harmonize with contemporaneous standardization efforts underway by the European Commission.

The Board has made significant changes in response to public comments to the 2010 ANPRM. The 2011 ANPRM is more concise than the 2010 ANPRM. It has six chapters instead of ten. The Board consolidated and streamlined provisions and consolidated advisories. The Board also removed scoping and application language from the chapters containing technical provisions and relocated them to new chapters at the beginning of the document. In addition, in response to concerns about an uneven approach taken in the 2010 ANPRM, where some chapters focused on features of products and others addressed specific types of products, the Board standardized the approach by removing references to types of products while focusing instead on specific features of products. The Board revised the overall structure of the functional performance criteria so that the provisions have parallel structure. Further, the Board grouped technical requirements for similar functions together in the same chapter to improve readability and usability. The Board also removed specific requirements relating to web and non-web electronic content, documents and user applications and referenced WCAG 2.0 instead. This revised text is consistent with and reflects the public comments received. The Board focused on making this draft as accurate and succinct as possible to improve reader comprehension.

In Section E103.5 of the 2010 ANPRM the Board proposed language to clarify the relationship between the functional performance criteria and the technical provisions. The Board deemed thisclarification to be warranted because the 508 standards currently do not clearly specify when agencies must use the technical provisions and when they must use the functional performance criteria. Subsection E103.5.1 of the 2010 ANPRM proposed that when an agency develops, procures, maintains, or uses ICT, it first must look to the technical provisions. If the technical provisions were fully satisfied, then the agency did not need to apply the functional performance criteria. Consequently, the 2010 ANPRM gave the technical criteria greater weight than the functional performance criteria since the functional performance criteria were used only when the procurement needs of the agency were not fully met by the technical provisions. While the Board intended for the approach taken in the 2010 ANPRM to reflect current practice, commenters objected to this approach, citing the concern that procurements that satisfy only the technical requirements do not necessarily provide access to information and data for individuals with disabilities.

The Board appreciates this concern and has redefined the relationship between the functional performance criteria and the technical provisions in section E204 of the 2011 ANPRM so that ICT must conform to the functional performance criteria, even when technical provisions are met. This is a significant change from the 2010 ANPRM, which did not require use of the functional performance criteria at all when the technical provisions fully addressed the product being procured. In subsection E101.2 of the 2011 ANPRM the Board retains the approach from subsections E103.5.3 and E106 of the 2010 ANPRM of using the functional performance criteria to evaluate whether using the equivalent facilitation provision provides substantially equivalent or greater access to and use of a product for individuals with disabilities. A covered entity has the option to apply the concept of equivalent facilitation in order to achieve conformance with the intent of the technical requirements, provided that the alternative affords individuals with disabilities substantially equivalent or greater access than would result from compliance with the technical requirements.

In subsection 202.3 in the 2010 ANPRM, the functional performance criterion for limited vision was changed to require a visual mode of operation which did not require visual acuity greater than 20/200 or a field of vision greater than 20 degrees. Commenters criticized this new approach as inadequate and technically incorrect. Organizations representing persons with disabilities disagreed with the 20/200 requirement, stating that it did not sufficiently address the needs of users with severe low vision. Industry groups noted that the 20/200 requirement contradicted several technical requirements. Both groups indicated that the approach taken did not address features which could actually improve accessibility for persons with limited vision. In addition, as written, only one feature had to be provided for each mode of operation. Commenters stated that this approach was too limited.

In subsection 302.2 in the 2011 ANPRM the Board has made several changes to the functional performance criterion for limited vision in response to these comments. A functional approach which more closely addresses the needs of users with limited vision replaces the approach which specified a measurement for visual acuity. The functional performance provision for limited vision now requires that when a visual mode of operation is provided, ICT must provide at least one mode of operation that magnifies, one mode that reduces the field of vision, and one mode that allows user control of contrast. The provision also states that these modes must be supplied in the same ICT, but may be supplied either directly or through compatibility with assistive technology.

The 2010 ANPRM covered all electronic content used by agencies where it was an official communication by the agency to federal employees or to members of the public. This approach attempted to clarify the approach in the current Section 508 standards. Section 508 requires that agencies ensure that individuals with disabilities have access to and use of information and data that is comparable to the access to and use of information and data by others without disabilities. Arguably, all electronic content developed, procured, maintained, or used by federal agencies is covered by the Section 508 standards because the standards do not limit the application of the requirements for access to and use of information and data to certain types of communication by an agency. Subsection E103.3.1 of the 2010 ANPRM proposed to cover electronic content only to the extent that it was an official agency communication. Commenters, however, disagreed strongly with this approach because, in their view, all communications by an agency are in some way official business of the agency. Consequently, no electronic content would be exempt. They found this to be overbroad with considerable potential cost in relation to the benefit. Because this requirement potentially would cover all electronic content created by an agency, commenters feared that it would require each employee to be capable of creating accessible content for all of his or her communications. If all employees were required to produce accessible formats for all their work, commenters argued that employees would need considerable training. Commenters cautioned that this practice would consume a large portion of agency resources without necessarily resulting in more accessibility.

In response, the Board proposes a more limited approach in section E205 of the 2011 ANPRM. Coverage of electronic content is limited to nine specific categories of information communicated by agencies to employees or to members of the general public during the conduct of official agency business, as determined by the agency mission. Covered electronic content includes the following: content that is public facing; content that is broadly disseminated within the agency; letters adjudicating any cause within the jurisdiction of the agency; internal and external program and policy announcements; notices of benefits, forms, questionnaires and surveys; emergency notifications; formal acknowledgements; and educational and training materials. There are two exceptions to covered content: archival copies stored or retained solely for archival purposes to preserve an exact image of a hard copy, and draft versions of documents.

Section 302 of the 2010 ANPRM substituted the term “closed functionality” for “self-contained, closed products”. The standards permitted ICT to have closed functionality and required it to be accessible to and usable by individuals with disabilities without requiring the attachment of assistive technology. Commenters did not object to the new terminology of “closed functionality” but asked for more detail and clarity in the provisions. In section 402 of the 2011 ANPRM, the Board now provides specific requirements for ICT with closed functionality to ensure that it is accessible to individuals with disabilities. These features include the requirement that ICT with closed functionality must be speech enabled.The term “speech enabled” means speech output. These proposed requirements are derived from Section 707, Automatic Teller Machines and Fare Machines, in the ADA and ABA Accessibility Guidelines and the 2010 Department of Justice ADA Standards for Accessible Design.

In the 2010 ANPRM, the Board reorganized the exceptions in the current standards and recommended deleting three of them as unnecessary. The three exceptions deleted by the Board were 36 CFR 1194.3(c) which stated that assistive technology need not be provided at all workstations for all federal employees; 36 CFR 1194.3(d) which provided that where agencies provide information and data to the public through accessible ICT, the accessible ICT need only be provided at the intended public location; and 36 CFR 1194.3(f), which stated that products located in spaces used only by service personnel for maintenance and repair need not be accessible. In an effort to simplify the wording, the Board rewrote the exception at 36 CFR 1194.3(b) permitting ICT acquired by a contractor incidental to a contract to not be accessible.

The Board received a number of comments about these proposed changes. Most commenters on this issue supported removing two of the three proposed exceptions. Only the proposed removal of the exception for ICT located in maintenance spaces generated negative comments. Commenters strongly objected to the Board's assertion that many functions could be accessed remotely, noting that there were still many instances when some functions could only be performed in a maintenance space on an infrequent basis. They stated that functions related to maintenance, repair, or occasional monitoring of equipment should not be required to be accessible. The Board has restored this exception in subsection E202.4 of the 2011 ANPRM. The Board revised the language from the current Section 508 standard to make it clear that there are some functions which are only capable of being performed on-site in a maintenance space occupied solely by service personnel. These functions cannot be accessed remotely and include maintenance, repair, or occasional monitoring of equipment.

The Board's efforts at streamlining the exception for ICT purchased by a contractor “incidental to a contract” received many critical comments. The rewritten exception deleted the phrase “incidental to a contract” and was relocated to a new section (E103.4.2) relating to federal contracts. Commenters expressed confusion as to the purpose of the new section and did not recognize the rewritten exception. One federal procurement official commented that the phrase “incidental to a contract” was more understandable and usable, particularly by contracting officials, who were most affected by this language. In response to comments, the Board has restored the original language from the current Section 508 standards in the 2011 ANPRM at subsection E202.3.

In the 2010 ANPRM, the Board sought public comment on the recommendation of the TEITAC for international harmonization. The 2010 ANPRM included most WCAG 2.0 Level A and Level AA Success Criteria but restated them in mandatory terms more appropriate for regulatory language. In the current 508 Standards, most of the provisions in 36 CFR 1194.22 mirror those of WCAG 1.0. The 2010 ANPRM (subsections E107 and C106) also requested comments on the option to use WCAG 2.0. Commenters noted that deviations from WCAG 2.0 phrasing introduced ambiguities, particularly for those familiar with WCAG 2.0.

The current 508 Standards provide discrete requirements for software (36 CFR 1194.21) and web content (36 CFR 1194.22). As noted in the TEITAC report and the 2010 ANPRM preamble, such distinctions are increasingly arbitrary. The 2010 ANPRM attempted to retain some of this separation by having one chapter of simpler provisions which were applicable to document authors and a chapter of more complex provisions which were applicable only to software developers. Provisions related to multimedia were grouped in a third distinct chapter. Commenters felt that this separation seemed more arbitrary than useful.

Both of the above weaknesses have been addressed in the 2011 ANPRM. Proposed subsections E205.1 and C203.1 incorporate WCAG 2.0 by reference, so there is no paraphrasing. WCAG 2.0 is written to be technology neutral, so it is straightforward to apply the WCAG 2.0 Success Criteria and Conformance Requirements to electronic documents and applications, regardless if those documents and applications are rendered within a web browser or within a native application outside the web browser environment.

Referencing WCAG 2.0 is consistent with Office of Management and Budget (OMB) Circular A-1191 which directs agencies to use voluntary consensus standards in lieu of government-unique standards. The primary benefit is economic in that this practice reduces costs to the government associated with developing its own standards and also decreases the cost of goods and services procured by the government. According to the Web Accessibility Initiative2 , fragmentation of standards is an economic issue for government, businesses, and web developers. In this case, incorporation by reference also directly serves the best interests of people with disabilities because harmonization of standards can help accelerate the spread of accessibility across the web. The accessibility of the web is essential to enable the participation of people with disabilities in an information society.

The Board's proposal to reference WCAG 2.0 as the standard for Section 508 and Section 255 web accessibility is also consistent with the Department of Transportation's proposed approach in its supplemental notice of proposed rulemaking addressing, among other things, the accessibility of air carrier and ticket agent Web sites. 76 FR 59307 (September 26, 2011).

The Board's proposal to incorporate WCAG 2.0 by reference is consistent with activity by other international standards organizations.3 Australia4 , Canada5 , and New Zealand6 already make direct reference to WCAG 2.0. The European Commission references WCAG 2.0 in its current working draft (under “Mandate M376”7 ). WCAG 2.0 also serves as the basis for web accessibility standards in Germany (under “BITV 2”), France (under“RGAA 2.2.1”) and Japan (under “JIS X 83141”) and has so far generated eight formal authorized translations.8

In the 2010 ANPRM, the Board proposed clarifications to the circumstances when documentation for the basis of a determination of undue burden is required, proposing that documentation must be provided in cases of development, maintenance, or use of ICT, as well as procurement. This was a change from 36 CFR 1194.2(2) which only discussed documentation of an undue burden determination during procurement of ICT. 29 U.S.C. 794d(a)(4) requires that “documentation by the department or agency supporting the procurement shall explain why compliance creates an undue burden”. 29 U.S.C. 794d(a)(1)(B) provides that federal agencies must provide alternative means of access to information and data to individuals with disabilities when development, procurement, maintenance, or use of electronic and information technology would impose an undue burden. The TEITAC recommended that the documentation requirement for undue burden be clarified. Accordingly, the Board added subsection E104.3 in the 2010 ANPRM to require documentation of undue burden determinations in the procurement, development, maintenance and use of ICT. The Board received only two comments, both made by one individual with a disability, in response to this provision. Both comments requested clarification of the factors to be addressed in undue burden documentation. In the 2011 ANPRM, the Board has clarified the factors used as the basis for a determination of undue burden in subsection E202.5.1, and retained the requirement for documentation in subsection E202.5.2.

The Board believes that requiring documentation of undue burden determinations for the use, maintenance, and development of ICT in addition to procurements will result in greater consistency and conformance with the 508 standards. These changes are consistent with the language of the statute, incorporate current practices, and encourage consistency in the documentation of undue burden determinations.

In addition to the major policy questions discussed above, this ANPRM includes some non-substantive editorial changes to the first ANPRM that are not detailed in this discussion. In addition to the questions below, the Board seeks general comments on the provisions in this document, including the extent to which they are necessary, their advantages and disadvantages, their quantitative and qualitative benefits and costs, and recommended alternatives. The Board also invites the public to identify any gaps in the draft guidelines and standards, and approaches to addressing such gaps.

Question 1:As discussed above, in response to public comments, the Board has made significant changes to the 2010 ANPRM by consolidating, streamlining, and removing provisions and advisories to improve readability, comprehensibility, and usability. The Board seeks comment on this new approach.

Question 2:As noted above, the Board has changed the approach taken towards covered electronic content (E205.1) in the 2011 ANPRM. The proposed requirement in Section E205.1 requires electronic content falling into certain categories of official communications by federal agencies to be accessible. Should additional or different types of communications be included in this subsection? What are the benefits and costs of this approach? Would such an approach have any unintended consequences on federal agency communications?

Question 3:In the discussion above, the Board has changed the approach to the functional performance criteria for limited hearing (302.5) and limited vision (302.2) in the 2011 ANPRM to require three specific features to be provided. These features may be provided either directly or through the use of assistive technology. The Board requests information on whether the features listed in these functional performance requirements will provide accessibility to users with limited vision or hearing, or whether there are other features which should be required in addition or instead. What are the costs and benefits associated with requiring the three features?

Question 4:As noted above, the 2011 ANPRM has changed the relationship between the functional performance criteria and the technical provisions (E204.1). The Board seeks comment on the proposed approach requiring conformance with the functional performance criteria at all times, even when the technical provisions are met. What are the costs and benefits associated with this approach?

Question 5:The 2011 ANPRM requires Web sites to be accessible to individuals with disabilities by conforming to WCAG 2.0. WCAG 2.0 allows a non-conforming (i.e.,inaccessible) Web page to be considered compliant if there is an accessible mechanism for reaching an accessible version of the Web page that is up to date and contains the same information and functionality as the inaccessible Web page. A web page that meets all these criteria qualifies as a “conforming alternate version” and is intended to provide individuals with disabilities equivalent access to the same information and functionality as the non-conforming web page. However, unrestricted use of conforming alternate versions may facilitate the emergence of two separate Web sites: One for individuals with disabilities and another for individuals without disabilities. Alternatively, restricting the use of conforming alternate versions may result in significant costs to federal departments and agencies by limiting their options for providing accessible content.

Should the Board restrict the use of conforming alternate versions? The Board seeks comments on whether allowing inaccessible content, even with conforming alternate versions, negatively affects the usability and accessibility of Web sites by individuals with disabilities. The Board also requests comments on the difficulty or costs that may be incurred if federal departments or agencies are not free to use conforming alternate versions of content along with inaccessible content.

Question 6:As noted above, Chapter 4 addresses features of ICT which may be used to communicate or produce electronic content or retrieve information or data. Some of the sections addressing these features of ICT include but are not limited to: Two Way Voice Communication (408), Operable Parts (407), and Standard Connections (406). The Board seeks comment on whether it should provide additional provisions to address accessibility concerns associated with features of ICT, such as content displayed on small screens, which are not otherwise addressed. For example the Board is considering whether to allow an exception to subsection 402.4 for text size for ICT which has a smaller screen. Should the Board require a minimum or maximum screen size to display content? Should a minimum text size bespecified for display on a screen? When ICT communicates or produces electronic content or retrieves information or data, are there additional unique limiting features that are not adequately addressed in these provisions, such as screen and text size and battery life, which the Board should address?

Question 7:The 2011 ANPRM has retained the approach of addressing features of ICT which make the ICT accessible and usable to individuals with disabilities. Are there some features or technologies addressed in the ANPRM that are obsolete or that have changed in a way that makes the proposed requirements irrelevant or difficult to apply? If so, commenters should recommend revisions to those section(s) of the ANPRM that should be updated and, if possible, recommend specific changes that would address the needs of individuals with disabilities and the unique characteristics of the technology concerned.

Question 8:Some modern touch screen devices, such as versions of some smartphones and tablets, have proved popular with people who are blind, despite not having keys which are tactilely discernible. Should the provision requiring that input controls be tactilely discernible (407.3) be revised to allow for such novel input methods? Should the Board add an exception to 407.3 to allow for input controls which are not tactilely discernible when access is provided in another way? If so, how should access be addressed when the controls are not tactilely discernible? Should a particular technology or method of approach be specified?

Question 9:As discussed above, the subsection for WCAG 2.0 conformance (E207.2) for user interface components and content of platforms and applications is intended to set a single standard for user interfaces, without regard to underlying rendering mechanisms, such as web browsers, operating systems, or platforms. Is applying the WCAG 2.0 Success and Conformance criteria to electronic documents and applications outside the web browser environment sufficient and clear to users, or should the Board provide further clarification? Are there other accessibility standards more applicable to user interface components and content of platforms and applications than WCAG 2.0 that the Board should reference?

For the purpose of this document, we are giving meaning to certain words or initials as follows:

(i) The words or initialsActorCAAmean or refer to the Clean Air Act, unless the context indicates otherwise.

(ii) The wordsEPA, we, usorourmean or refer to the United States Environmental Protection Agency.

(iii) The initialsSIPmean or refer to State Implementation Plan.

(iv) The initialsNAAQSmean or refer to National Ambient Air Quality Standards.

(v) The wordsSouth DakotaandStatemean the State of South Dakota.

Regional haze is visibility impairment that is produced by a multitude of sources and activities which are located across a broad geographic area and emit particulate matter with a diameter less than 2.5 microns (PM2.5) (e.g.,sulfates, nitrates, organic carbon (OC), elemental carbon (EC) and soil dust) and its precursors (e.g.,sulfur dioxide (SO2), nitrogen oxides (NOX), and in some cases, ammonia (NH3) and volatile organic compounds (VOCs)). These precursors react in the atmosphere to form PM2.5. PM2.5impairs visibility by scattering and absorbing light. Visibility impairment reduces the clarity, color and visible distance that one can see. PM2.5also can cause serious health effects and mortality in humans and contributes to environmental effects such as acid deposition and eutrophication.

Data from the “Interagency Monitoring of Protected Visual Environments” (IMPROVE) monitoring network show that visibility impairment caused by air pollution occurs virtually all the time at most national park and wilderness areas. The average visual range1 in many Class I areas (i.e.,national parks, memorial parks, wilderness areas and international parks meeting certain size criteria) in the western United States is 100-150 kilometers, or about one-half to two-thirds of the visual range that would exist without anthropogenic air pollution. 64 FR 35714, 35715 (July 1, 1999). In most of the eastern Class I areas of the United States, the average visual range is less than 30 kilometers, or about one-fifth of the visual range that would exist under estimated natural conditions.Id.

In section 169A of the 1977 Amendments to the CAA, Congress created a program for protecting visibility in the nation's national parks and wilderness areas. This section of the CAA establishes as a national goal the “prevention of any future, and the remedying of any existing, impairment of visibility in mandatory Class I federal areas2 which impairment results from man-made air pollution.” CAA § 169A(a)(1). The terms “impairment of visibility” and “visibility impairment” are defined in the Act to include a reduction in visual range and atmospheric discoloration.Id.section 169A(g)(6). In 1980, we promulgated regulations to address visibility impairment in Class I areas that is “reasonably attributable” to a single source or small group of sources,i.e.,“RAVI.” 45 FR 80084 (December 2, 1980). These regulations represented the first phase in addressing visibility impairment. We deferred action on regional haze that emanates from a variety of sources until monitoring, modeling and scientific knowledge about the relationships between pollutants and visibility impairment had improved.

Congress added section 169B to the CAA in 1990 to address regional haze issues, and we promulgated regulations addressing regional haze in 1999. 64 FR 35714 (July 1, 1999), codified at 40 CFR part 51, subpart P. The Regional Haze Rule revised the existing visibility regulations to integrate into them provisions addressing regional haze impairment and establish a comprehensive visibility protection program for Class I areas. The requirements for regional haze, found at 40 CFR 51.308 and 51.309, are included in our visibility protection regulations at 40 CFR 51.300-309. Some of the main regional haze requirements are summarized in section II of this action. The requirement to submit a Regional Haze SIP applies to all 50 states, the District of Columbia and the Virgin Islands. States were required to submit a SIP addressing regional haze visibility impairment no later than December 17, 2007.3 40 CFR 51.308(b).

Few states submitted a Regional Haze SIP prior to the December 17, 2007 deadline, and on January 15, 2009, EPA found that 37 states, including South Dakota and the District of Columbia, and the Virgin Islands, had failed to submit SIPs addressing the regionalhaze requirements. 74 FR 2392. Once EPA has found that a state has failed to make a required submission, EPA is required to promulgate a FIP within two years unless the state submits a SIP and the Agency approves it within the two year period. CAA § 110(c)(1).

Successful implementation of the regional haze program will require long-term regional coordination among states, tribal governments and various Federal agencies. Pollution affecting the air quality in Class I areas can be transported over long distances, even hundreds of kilometers. Therefore, to effectively address the problem of visibility impairment in Class I areas, states need to develop strategies in coordination with one another, taking into account the effect of emissions from one jurisdiction on the air quality in another.

Because the pollutants that lead to regional haze can originate from sources located across broad geographic areas, we have encouraged the states and tribes across the United States to address visibility impairment from a regional perspective. Five regional planning organizations (RPOs) were formed to address regional haze and related issues. The RPOs first evaluated technical information to better understand how their states and tribes impact Class I areas across the country, and then pursued the development of regional strategies to reduce emissions of particulate matter (PM) and other pollutants leading to regional haze.

The Western Regional Air Program (WRAP) is a collaborative effort of state governments, tribal governments and various Federal agencies established to conduct data analyses, conduct pollutant transport modeling and coordinate planning activities among the western states. Member state governments include: Alaska, Arizona, California, Colorado, Idaho, Montana, New Mexico, North Dakota, Oregon, South Dakota, Utah, Washington and Wyoming. Tribal members include Campo Band of Kumeyaay Indians, Confederated Salish and Kootenai Tribes, Cortina Indian Rancheria, Hopi Tribe, Hualapai Nation of the Grand Canyon, Native Village of Shungnak, Nez Perce Tribe, Northern Cheyenne Tribe, Pueblo of Acoma, Pueblo of San Felipe and the Shoshone-Bannock Tribe of Fort Hall.

The following is a summary of the requirements of the Regional Haze Rule. See 40 CFR 51.308 for further detail regarding the requirements of the rule.

Regional Haze SIPs must assure reasonable progress towards the national goal of achieving natural visibility conditions in Class I areas. Section 169A of the CAA and our implementing regulations require states to establish long-term strategies for making reasonable progress toward meeting this goal. Implementation plans must also give specific attention to certain stationary sources that were in existence on August 7, 1977, but were not in operation before August 7, 1962, and require these sources, where appropriate, to install Best Available Retrofit Technology (BART) controls for the purpose of eliminating or reducing visibility impairment. The specific Regional Haze SIP requirements are discussed in further detail below.

The Regional Haze Rule establishes the deciview (dv) as the principal metric for measuring visibility.See70 FR 39104, 39118. This visibility metric expresses uniform changes in the degree of haze in terms of common increments across the entire range of visibility conditions, from pristine to extremely hazy conditions. Visibility is sometimes expressed in terms of the visual range, which is the greatest distance in kilometers or miles at which a dark object can just be distinguished against the sky. The deciview is a useful measure for tracking progress in improving visibility, because each deciview change is an equal incremental change in visibility perceived by the human eye. Most people can detect a change in visibility of one deciview.4

The deciview is used in expressing reasonable progress goals (RPGs) (which are interim visibility goals towards meeting the national visibility goal), defining baseline, current and natural conditions, and tracking changes in visibility. The Regional Haze SIPs must contain measures that ensure “reasonable progress” toward the national goal of preventing and remedying visibility impairment in Class I areas caused by man-made air pollution by reducing anthropogenic emissions that cause regional haze. The national goal is a return to natural conditions,i.e.,man-made sources of air pollution would no longer impair visibility in Class I areas.

To track changes in visibility over time at each of the 156 Class I areas covered by the visibility program (40 CFR 81.401-437), and as part of the process for determining reasonable progress, states must calculate the degree of existing visibility impairment at each Class I area at the time of each Regional Haze SIP submittal and periodically review progress every five years midway through each 10-year implementation period. To do this, the Regional Haze Rule requires states to determine the degree of impairment (in deciviews) for the average of the 20 percent least impaired (“best”) and the average of the 20 percent most impaired (“worst”) visibility days over a specified time period at each of their Class I areas. In addition, states must also develop an estimate of natural visibility conditions for the purpose of comparing progress toward the national goal. Natural visibility is determined by estimating the natural concentrations of pollutants that cause visibility impairment and then calculating total light extinction based on those estimates. We have provided guidance to states regarding how to calculate baseline, natural and current visibility conditions.5

For the first Regional Haze SIPs that were due by December 17, 2007, “baseline visibility conditions” were the starting points for assessing “current” visibility impairment. Baseline visibility conditions represent the degree of visibility impairment for the 20 percent least impaired days and 20 percent most impaired days for each calendar year from 2000 to 2004. Using monitoring data for 2000 through 2004, states are required to calculate the average degree of visibility impairment for each Class I area, based on the average of annual values over the five-year period. The comparison of initial baseline visibility conditions to natural visibility conditions indicates the amount of improvement necessary to attain natural visibility, while the future comparison of baseline conditions to the then current conditions will indicate the amount of progress made. In general, the 2000-2004 baseline period is considered the time from which improvement in visibility is measured.

The vehicle for ensuring continuing progress towards achieving the natural visibility goal is the submission of a series of Regional Haze SIPs from the states that establish two reasonable progress goals (i.e.,two distinct goals, one for the “best” and one for the “worst” days) for every Class I area for each (approximately) 10-year implementation period.See40 CFR 51.308(d), (f). The Regional Haze Rule does not mandate specific milestones or rates of progress, but instead calls for states to establish goals that provide for “reasonable progress” toward achieving natural (i.e.,“background”) visibility conditions. In setting reasonable progress goals, states must provide for an improvement in visibility for the most impaired days over the (approximately) 10-year period of the SIP, and ensure no degradation in visibility for the least impaired days over the same period.Id.

In establishing reasonable progress goals, states are required to consider the following factors established in section 169A of the CAA and in our Regional Haze Rule at 40 CFR 51.308(d)(1)(i)(A): (1) The costs of compliance; (2) the time necessary for compliance; (3) the energy and non-air quality environmental impacts of compliance; and (4) the remaining useful life of any potentially affected sources. States must demonstrate in their SIPs how these factors are considered when selecting the reasonable progress goals for the best and worst days for each applicable Class I area. In setting the reasonable progress goals, states must also consider the rate of progress needed to reach natural visibility conditions by 2064 (referred to as the “uniform rate of progress” or “glidepath”) and the emission reduction measures needed to achieve that rate of progress over the 10-year period of the SIP. Uniform progress towards achievement of natural conditions by the year 2064 represents a rate of progress, which states are to use for analytical comparison to the amount of progress they expect to achieve. If a state establishes a reasonable progress goal that provides for a slower rate of improvement in visibility than the rate that would be needed to attain natural conditions by 2064, the state must demonstrate, based on the reasonable progress factors, that the rate of progress for the implementation plan to attain natural conditions by 2064 is not reasonable, and that the progress goal adopted by the state is reasonable. In setting reasonable progress goals, each state with one or more Class I areas (“Class I state”) must also consult with potentially “contributing states,”i.e.,other nearby states with emission sources that may be affecting visibility impairment at the state's Class I areas. 40 CFR 51.308(d)(1)(iv). In determining whether a state's goals for visibility improvement provide for reasonable progress toward natural visibility conditions, EPA is required to evaluate the demonstrations developed by the state pursuant to paragraphs 40 CFR 51.308(d)(1)(i) and (d)(1)(ii). 40 CFR 51.308(d)(1)(iii).

Section 169A of the CAA directs states to evaluate the use of retrofit controls at certain larger, often uncontrolled, older stationary sources with the potential to emit 250 tons or more per year of any pollutant in order to address visibility impacts from these sources. Specifically, section 169A(b)(2)(A) of the Act requires states to revise their SIPs to contain such measures as may be necessary to make reasonable progress towards the natural visibility goal, including a requirement that certain categories of existing major stationary sources6 built between 1962 and 1977 procure, install and operate BART as determined by the state or by EPA in the case of a plan promulgated under section 110(c) of the CAA. Under the Regional Haze Rule, states are directed to conduct BART determinations for such “BART-eligible” sources that may be anticipated to cause or contribute to any visibility impairment in a Class I area. Rather than requiring source-specific BART controls, states also have the flexibility to adopt an emissions trading program or other alternative program as long as the alternative provides greater reasonable progress towards improving visibility than BART.

On July 6, 2005, we published theGuidelines for BART Determinations Under the Regional Haze Ruleat appendix Y to 40 CFR part 51 (“BART Guidelines”) to assist states in determining which of their sources should be subject to the BART requirements and in determining appropriate emission limits for each applicable source. 70 FR 39104. In making a BART determination for a fossil fuel-fired electric generating plant with a total generating capacity in excess of 750 megawatts (MW), a state must use the approach set forth in the BART Guidelines. A state is encouraged, but not required, to follow the BART Guidelines in making BART determinations for other types of sources. Regardless of source size or type, a state must meet the requirements of the CAA and our regulations for selection of BART, and the state's BART analysis and determination must be reasonable in light of the overarching purpose of the regional haze program.

The process of establishing BART emission limitations can be logically broken down into three steps: First, states identify those sources which meet the definition of “BART-eligible source” set forth in 40 CFR 51.3017 ; second, states determine which of such sources “emits any air pollutant which may reasonably be anticipated to cause or contribute to any impairment of visibility in any such area” (a source which fits this description is “subject to BART”); and third, for each source subject to BART, states then identify the best available type and level of control for reducing emissions.

States must address all visibility-impairing pollutants emitted by a source in the BART determination process. The most significant visibility-impairing pollutants are SO2, NOXand PM. We have stated that states should use their best judgment in determining whether VOC or NH3compounds impair visibility in Class I areas.

Under the BART Guidelines, states may select an exemption threshold value for their BART modeling, below which a BART-eligible source would not be expected to cause or contribute to visibility impairment in any Class I area. The state must document this exemption threshold value in the SIP and must state the basis for its selection of that value. Any source with emissions that model above the threshold value would be subject to a BART determination review. The BART Guidelines acknowledge varying circumstances affecting different Class I areas. States should consider the number of emission sources affecting the Class I areas at issue and the magnitude of the individual sources' impacts. Any exemption threshold set by the state should not be higher than 0.5 deciviews. 40 CFR part 51, appendix Y, section III.A.1.

In their SIPs, states must identify “BART-eligible sources” and “subject-to-BART sources” and document theirBART control determination analyses. The term “BART-eligible source” used in the BART Guidelines means the collection of individual emission units at a facility that together comprises the BART-eligible source. In making BART determinations, section 169A(g)(2) of the CAA requires that states consider the following factors: (1) The costs of compliance; (2) the energy and non-air quality environmental impacts of compliance; (3) any existing pollution control technology in use at the source; (4) the remaining useful life of the source; and (5) the degree of improvement in visibility which may reasonably be anticipated to result from the use of such technology.See also40 CFR 51.308(e)(1)(ii)(A).

A Regional Haze SIP must include source-specific BART emission limits and compliance schedules for each source subject to BART. Once a state has made its BART determination, the BART controls must be installed and in operation as expeditiously as practicable, but no later than five years after the date of our approval of the Regional Haze SIP. CAA section 169(g)(4) and 40 CFR 51.308(e)(1)(iv). In addition to what is required by the Regional Haze Rule, general SIP requirements mandate that the SIP must also include all regulatory requirements related to monitoring, recordkeeping, and reporting for the BART controls on the source.SeeCAA section 110(a). As noted above, the Regional Haze Rule allows states to implement an alternative program in lieu of BART so long as the alternative program can be demonstrated to achieve greater reasonable progress toward the national visibility goal than would BART.

Consistent with the requirement in section 169A(b) of the CAA that states include in their Regional Haze SIP a 10- to 15 year strategy for making reasonable progress, section 51.308(d)(3) of the Regional Haze Rule requires that states include a long term strategy (LTS) in their Regional Haze SIPs. The LTS is the compilation of all control measures a state will use during the implementation period of the specific SIP submittal to meet applicable reasonable progress goals. The LTS must include “enforceable emissions limitations, compliance schedules, and other measures as necessary to achieve the reasonable progress goals” for all Class I areas within, or affected by emissions from, the state. 40 CFR 51.308(d)(3).

When a state's emissions are reasonably anticipated to cause or contribute to visibility impairment in a Class I area(s) located in another state or states, the Regional Haze Rule requires the state to consult with the other state(s) in order to develop coordinated emissions management strategies. 40 CFR 51.308(d)(3)(i). Also, a state with a Class I area impacted by emissions from another state must consult with such contributing state, and must also demonstrate that it has included in its SIP all measures necessary to obtain its share of the emission reductions needed to meet the reasonable progress goals for the Class I area.Id.at (d)(3)(ii). The RPOs have provided a forum for significant interstate consultation, but additional consultations between states may be required to sufficiently address interstate visibility issues. This is especially true where two states belong to different RPOs.

States should consider all types of anthropogenic sources of visibility impairment in developing their LTS, including stationary, minor, mobile and area sources. At a minimum, states must describe how each of the following seven factors listed below are taken into account in developing their LTS: (1) Emission reductions due to ongoing air pollution control programs, including measures to address reasonably attributable visibility impairment (RAVI); (2) measures to mitigate the impacts of construction activities; (3) emissions limitations and schedules for compliance to achieve the reasonable progress goals; (4) source retirement and replacement schedules; (5) smoke management techniques for agricultural and forestry management purposes including plans as currently exist within the state for these purposes; (6) enforceability of emissions limitations and control measures; and (7) the anticipated net effect on visibility due to projected changes in point, area and mobile source emissions over the period addressed by the LTS. 40 CFR 51.308(d)(3)(v).

As part of the Regional Haze Rule, we revised 40 CFR 51.306(c) regarding the LTS for RAVI to require that the RAVI plan must provide for a periodic review and SIP revision not less frequently than every three years until the date of submission of the state's first plan addressing regional haze visibility impairment, which was due December 17, 2007, in accordance with 40 CFR 51.308(b) and (c). On or before this date, the state must revise its plan to provide for review and revision of a coordinated LTS for addressing RAVI and regional haze, and the state must submit the first such coordinated LTS with its first Regional Haze SIP. Future coordinated LTS and periodic progress reports evaluating progress towards reasonable progress goals, must be submitted consistent with the schedule for SIP submission and periodic progress reports set forth in 40 CFR 51.308(f) and 51.308(g), respectively. The periodic review of a state's LTS must report on both regional haze and RAVI and must be submitted to us as a SIP revision.

Section 51.308(d)(4) of the Regional Haze Rule includes the requirement for a monitoring strategy for measuring, characterizing and reporting of regional haze visibility impairment that is representative of all mandatory Class I Federal areas within the state. The strategy must be coordinated with the monitoring strategy required in section 51.305 for RAVI. Compliance with this requirement may be met through “participation” in the IMPROVE network,i.e.,review and use of monitoring data from the network. The monitoring strategy is due with the first Regional Haze SIP, and it must be reviewed every five years. The monitoring strategy must also provide for additional monitoring sites if the IMPROVE network is not sufficient to determine whether reasonable progress goals will be met.

Under section 51.308(d)(4), the SIP must also provide for the following:

• Procedures for using monitoring data and other information in a state with mandatory Class I areas to determine the contribution of emissions from within the state to regional haze visibility impairment at Class I areas both within and outside the state;

• Reporting of all visibility monitoring data to the Administrator at least annually for each Class I area in the state, and where possible, in electronic format;

• Developing a statewide inventory of emissions of pollutants that are reasonably anticipated to cause or contribute to visibility impairment in any Class I area. The inventory must include emissions for a baseline year, emissions for the most recent year for which data are available, and estimates of future projected emissions. A state must also make a commitment to update the inventory periodically; and

• Other elements, including reporting, recordkeeping and other measures necessary to assess and report on visibility.

The Regional Haze Rule requires control strategies to cover an initial implementation period extending to theyear 2018, with a comprehensive reassessment and revision of those strategies, as appropriate, every 10 years thereafter. Periodic SIP revisions must meet the core requirements of section 51.308(d), with the exception of BART. The requirement to evaluate sources for BART applies only to the first Regional Haze SIP. Facilities subject to BART must continue to comply with the BART provisions of section 51.308(e). Periodic SIP revisions will assure that the statutory requirement of reasonable progress will continue to be met.

The Regional Haze Rule requires that states consult with Federal land managers (FLMs) before adopting and submitting their SIPs. 40 CFR 51.308(i). States must provide FLMs an opportunity for consultation, in person and at least 60 days prior to holding any public hearing on the SIP. This consultation must include the opportunity for the FLMs to discuss their assessment of impairment of visibility in any Class I area and to offer recommendations on the development of the reasonable progress goals and on the development and implementation of strategies to address visibility impairment. Further, a state must include in its SIP a description of how it addressed any comments provided by the FLMs. Finally, a SIP must provide procedures for continuing consultation between the state and FLMs regarding the state's visibility protection program, including development and review of SIP revisions, five-year progress reports, and the implementation of other programs having the potential to contribute to impairment of visibility in Class I areas.

The State of South Dakota submitted a revision to its SIP to address the requirements for regional haze on January 21, 2011. On September 19, 2011, South Dakota submitted an amendment to the Regional Haze SIP revision for approval into the South Dakota SIP. The amendment incorporated changes made by the State to ensure approvability of the SIP revision. The changes incorporated detailed monitoring, recordkeeping, and reporting requirements for BART sources into state regulation, Administrative Rules of South Dakota (ARSD) Chapter 74:36:21, including specifying that BART limits apply at all times and clarified compliance test methods for particulate matter and continuous emission monitoring system requirements for SO2and NOX. In addition, South Dakota revised the reasonable progress analysis for the GCC Dacotah cement plant. The following is a discussion of our evaluation of the revision.

In accordance with 40 CFR 51.308(d), South Dakota identified two Class I areas within its borders: Badlands National Park and Wind Cave National Park. South Dakota is responsible for developing reasonable progress goals for these two Class I areas. South Dakota emissions have or may reasonably be expected to have impacts at Class I areas in other states including: Boundary Waters Canoe Area Wilderness Area and Voyageurs National Park in Minnesota; Medicine Lake National Wildlife Refuge Wilderness Area and UL Bend National Wildlife Refuge Wilderness Area in Montana; Bridger Wilderness Area, Fitzpatrick Wilderness Area, Grand Teton National Park, Teton Wilderness Area, North Absaroka Wilderness Area, Washakie Wilderness Area and Yellowstone National Park in Wyoming; and Theodore Roosevelt National Park and Lostwood Wilderness Area in North Dakota. South Dakota consulted with the appropriate state air quality agency in each of these states through their involvement with the WRAP and worked with other states that are not members of WRAP (including Minnesota and Nebraska). Assessment of South Dakota's contribution to haze in these Class I areas is based on technical analyses developed by WRAP.

As required by section 51.308(d)(2)(i) of the Regional Haze Rule and in accordance with our 2003 Natural Visibility Guidance, South Dakota calculated baseline/current and natural visibility conditions for its Class I areas, Badlands and Wind Cave, on the most impaired and least impaired days, as summarized below. The natural visibility conditions, baseline visibility conditions and visibility impact reductions needed to achieve the uniform rate of progress in 2018 for both South Dakota Class I areas are presented in Table 1 and further explained in this section. More detail is available in Section 3 of the South Dakota SIP.8

Natural background visibility as defined in our 2003 Natural Visibility Guidance is estimated by calculating the expected light extinction using default estimates of natural concentrations of fine particle components adjusted by site-specific estimates of humidity. This calculation uses the IMPROVE equation, which is a formula for estimating light extinction from the estimated natural concentrations of fine particle components (or from components measured by the IMPROVE monitors).As documented in our 2003 Natural Visibility Guidance, EPA allows states to use “refined” or alternative approaches to this guidance to estimate the values that characterize the natural visibility conditions of Class I areas. One alternative approach is to develop and justify the use of alternative estimates of natural concentrations of fine particle components. Another alternative is to use the “new IMPROVE equation” that was adopted for use by the IMPROVE Steering Committee in December 2005.9 The purpose of this refinement to the “old IMPROVE equation” is to provide more accurate estimates of the various factors that affect the calculation of light extinction.

For Badlands and Wind Cave, South Dakota opted to use the revised IMPROVE equation to calculate natural background conditions. This is an acceptable approach under our 2003 Natural Visibility Guidance. EPA has found the use of the revised IMPROVE equation appropriate for WRAP states.10 For Badlands, the natural visibility background for the 20 percent worst days is 8.06 deciviews and for the 20 percent best days is 2.86 deciviews. For Wind Cave, the natural visibility result for the 20 percent worst days is 7.71 deciviews and for the 20 percent best days is 1.88 deciviews. We have reviewed South Dakota's estimates of the natural visibility conditions and as the approach used by the State was consistent with our 2003 Natural Visibility Guidance we are proposing to find them acceptable.

As required by section 51.308(d)(2)(i) of the Regional Haze Rule, South Dakota calculated baseline visibility conditions for Badlands and Wind Cave. The baseline condition calculation begins with the calculation of light extinction using the IMPROVE equation. The IMPROVE equation sums the light extinction11 resulting from individual pollutants, such as sulfates and nitrates. As with the natural visibility conditions calculation, South Dakota chose to use the revised IMPROVE equation.

The period for establishing baseline visibility conditions is 2000-2004, and baseline conditions must be calculated using available monitoring data. 40 CFR 51.308(d)(2). The South Dakota Regional Haze SIP employed visibility monitoring data collected by IMPROVE monitors located in both South Dakota Class I areas for the years 2000 through 2004 and the resulting baseline conditions represent an average for 2000-2004. South Dakota calculated the baseline conditions at Badlands as 17.14 deciviews on the 20 percent worst days, and 6.89 deciviews on the 20 percent best days. South Dakota calculated the baseline conditions at Wind Cave as 15.84 deciviews on the 20 percent worst days, and 5.14 deciviews on the 20 percent best days. We have reviewed South Dakota's estimations of baseline visibility conditions and propose to find these acceptable as the approach the State used was consistent with our 2003 Natural Visibility Guidance.

To address the requirements of 40 CFR 51.308(d)(2)(iv)(A), South Dakota also calculated the number of deciviews by which baseline conditions exceed natural visibility conditions at Badlands and Wind Cave. For Badlands, baseline conditions exceed natural conditions by 9.08 deciviews (17.14-8.06) for the 20 percent worst days and 4.03 deciviews (6.89-2.86) for the 20 percent best days. For Wind Cave, these figures are 8.13 (15.84-7.71) and 3.26 deciviews (5.14-1.88), respectively.

In setting the reasonable progress goals, South Dakota analyzed and determined the uniform rate of progress needed to reach natural visibility conditions by the year 2064. In so doing, South Dakota compared the baseline visibility conditions in Badlands and Wind Cave to the natural visibility conditions in Badlands and Wind Cave (as described above) and determined the uniform rate of progress needed in order to attain natural visibility conditions by 2064 in both Class I areas. South Dakota constructed the uniform rate of progress consistent with the requirements of the Regional Haze Rule by plotting a straight graphical line from the baseline level of visibility impairment for 2000-2004 to the level of visibility conditions representing no anthropogenic impairment in 2064 for Badlands and Wind Cave. The uniform rates of progress are summarized in Table 2 and further described below.

Using a baseline visibility value at Badlands of 17.14 deciviews and a “refined” natural visibility value of 8.06 deciviews for the 20 percent worst days, South Dakota calculated the uniform rate of progress to be approximately 0.151 deciviews per year (deciviews/year or dv/yr). This results in a total reduction of 9.08 deciviews to reach the natural visibility condition of 8.06 deciviews in 2064. The uniform rate of progress results in a visibility improvement of 2.18 deciviews needed for the period covered by this SIP revision submittal (up to and including 2018).

Using a baseline visibility value at Wind Cave of 15.84 deciviews and a “refined” natural visibility value of 7.71 deciviews for the 20 percent worst days, South Dakota calculated the uniform rate of progress to be approximately 0.136 deciviews per year. This results in a total reduction of 8.13 deciviews to reach the natural visibility condition of 7.71 deciviews in 2064. The uniform rate of progress results in a visibility improvement of 1.89 deciviews needed for the period covered by this SIP revision submittal (up to and including 2018).

We propose to find that South Dakota has appropriately calculated the uniform rates of progress.

BART is an element of South Dakota's LTS for the first implementation period. As discussed in more detail in section II.D of this preamble, the BART evaluation process consists of three components: (1) An identification of all the BART-eligible sources; (2) an assessment of whether those BART-eligible sources are in fact subject to BART; and (3) a determination of any BART controls. South Dakota addressed these steps as follows:

The first step of a BART evaluation is to identify all the BART-eligible sources within the state's boundaries. The State identified the BART-eligible sources in South Dakota by utilizing the approach set out in the BART Guidelines (70 FR 39158); this approach provides three criteria for identifying BART-eligible sources: (1) One or more emission units at the facility fit within one of the 26 categories listed in the BART Guidelines; (2) the emission unit(s) began operation on or after August 7, 1962, and was in existence on August 7, 1977; and (3) potential emissions of any visibility-impairing pollutant from subject units are 250 tons or more per year. South Dakota initially screened its emissions inventory and permitting database to identify major facilities with emission units in one or more of the 26 BART categories. Following this, South Dakota used its databases and records to identify facilities in these source categories with potential emissions of 250 tons per year or more for any visibility-impairing pollutant from any units that were in existence on August 7, 1977 and began operation on or after August 7, 1962.

The BART Guidelines direct states to address SO2, NOXand direct PM (including both coarse (PM10) and fine (PM2.5) particulate matter emissions as visibility-impairing pollutants and to exercise their “best judgment to determine whether VOC or NH3emissions from a source are likely to have an impact on visibility in an area.”See70 FR 39162. The available inventory information indicates VOCs in South Dakota overwhelmingly come from biogenic sources, and NH3in South Dakota is primarily due to area sources, such as livestock and fertilizer application. Because these are not point sources, they are not subject to BART. We have reviewed this information and propose to find South Dakota's focus on SO2,NOX, and PM acceptable.

South Dakota identified BART-eligible sources in South Dakota as shown in Table 3. This information is presented in Section 6 of South Dakota's SIP.

The second step of the BART evaluation is to identify those BART-eligible sources that may reasonably be anticipated to cause or contribute to any visibility impairment at any Class I area,i.e.those sources that are subject to BART. The BART Guidelines allow states to consider exempting some BART-eligible sources from further BART review because they may not reasonably be anticipated to cause or contribute to any visibility impairment in a Class I area.

The BART Guidelines provide that states may use the CALPUFF12 modeling system or another appropriate model to predict the visibility impacts from a single source on a Class I area and to, therefore, determine whether an individual source is anticipated to cause or contribute to impairment of visibility in Class I areas,i.e.,“is subject to BART.” The BART Guidelines state that we find CALPUFF is the best regulatory modeling application currently available for predicting a single source's contribution to visibility impairment (70 FR 39162).

The BART Guidelines also recommend that states develop a modeling protocol for making individual source attributions, and suggest that states may want to consult with us and their RPO to address any issues prior to modeling. South Dakota relied on WRAP's CALPUFF modeling for South Dakota BART sources asrecommended by the BART Guidelines.13 40 CFR part 51, appendix Y, section III.A.3.

To determine if each BART-eligible source has a significant impact on visibility, South Dakota used WRAP's CALPUFF modeling results to estimate daily visibility impacts above estimated natural conditions at each Class I area within 300 km of any BART-eligible facility, based on maximum actual 24-hour emissions over a three year period (2000-2002).

For states using modeling to determine the applicability of BART to single sources, the BART Guidelines note that the first step is to set a contribution threshold to assess whether the impact of a single source is sufficient to cause or contribute to visibility impairment at a Class I area. The BART Guidelines state that, “[a] single source that is responsible for a 1.0 deciview change or more should be considered to `cause' visibility impairment.” 70 FR 39104, 39161. The BART Guidelines also state that “the appropriate threshold for determining whether a source contributes to visibility impairment may reasonably differ across states,” but, “[a]s a general matter, any threshold that you use for determining whether a source `contributes' to visibility impairment should not be higher than 0.5 deciviews.”Id.Further, in setting a contribution threshold, states should “consider the number of emissions sources affecting the Class I areas at issue and the magnitude of the individual sources' impacts.” The Guidelines affirm that states are free to use a lower threshold if they conclude that the location of a large number of BART-eligible sources in proximity to a Class I area justifies this approach.

South Dakota used a contribution threshold of 0.5 deciviews for determining which sources are subject to BART. The State's decision was based on the following factors: (1) 0.5 deciviews equates to the 5% extinction threshold for new sources under the Prevention of Significant Deterioration (PSD) New Source Review rules, (2) 0.5 deciviews is consistent with the threshold selected by other states in the west, which all selected 0.5 deciviews, and (3) 0.5 deciviews represents the limit of perceptible change. Although we do not agree that all of the factors considered by South Dakota's Department of Environmental and Natural Resources are relevant in determining whether a source can be considered to cause or contribute to visibility impairment, we propose to approve the State's threshold of 0.5 deciviews. As the discussion below indicates, Big Stone I is the only BART-eligible source in South Dakota in operation. Given that and the fact that the modeling indicates that Big Stone I is reasonably anticipated to have an impact over the 0.5 deciview threshold at several Class I Areas, it is apparent that no BART-eligible sources were exempted from review based on the 0.5 deciviews threshold that could have had meaningful impact on visibility in one or more Class I areas. We are proposing that 0.5 deciviews is a reasonable threshold for South Dakota in determining whether its BART-eligible sources are subject to BART.

South Dakota determined that the three units at Northern States Power were not subject to BART because the units have been decommissioned and are no longer permitted to operate under the facility's Title V air quality permit. Consistent with the BART Guidelines, South Dakota requested that WRAP model each of its remaining operating BART-eligible sources to assess the extent of their contribution to visibility impairment at surrounding Class I areas.

The WRAP modeling results demonstrated that Pete Lien and Sons, Inc. did not cause or contribute to visibility impairment at any Class I area. After reviewing the modeling inputs, South Dakota determined that the vertical kiln should be modeled again due to several errors. However, before additional modeling could be done, Pete Lien and Sons, Inc. shut down and dismantled the kiln in 2009 per its Title V permit.14

The WRAP modeling results for Otter Tail Power Company's Big Stone I are summarized in Table 4. The results show that Big Stone I's emissions cause visibility impacts that exceed the 0.5 deciviews threshold at the Badlands National Park in South Dakota, Theodore Roosevelt National Park in North Dakota, and Boundary Waters Wilderness and Voyageurs National Park in Minnesota.

South Dakota allowed Otter Tail Power Company to re-run the modeling after the company identified several errors in actual emission rates and stack parameters. After additional review, Otter Tail Power Company developed a revised modeling protocol that both the State and EPA approved. The modeling protocol is included in Appendix A of the SIP. The results from Otter Tail's modeling are summarized in Table 5. Otter Tail's modeling report is included in Appendix B of the SIP.

In reviewing Otter Tail's results, the State rounded to one significant figure and determined that Big Stone I emissions cause visibility impacts that exceed the 0.5 deciviews threshold at the same Class I areas identified in the WRAP modeling in addition to Isle Royale in Michigan. South Dakota relied on Otter Tail's modeling, noting that it best represented the visibility impacts from Big Stone I because the original WRAP modeling did not have the correct emission rates and stack parameters and that the modeling protocol adjustments improved the accuracy of the model over long distances.

The third step of a BART evaluation is to perform the BART analysis. The BART Guidelines (70 FR 39164) describe the BART analysis as consisting of the following five steps:

• Step 1: Identify All Available Retrofit Control Technologies,

• Step 2: Eliminate Technically Infeasible Options,

• Step 3: Evaluate Control Effectiveness of Remaining Control Technologies,

• Step 4: Evaluate Impacts and Document the Results, and

• Step 5: Evaluate Visibility Impacts.

In determining BART, the State must consider the five statutory factors in section 169A of the CAA: (1) The costs of compliance; (2) the energy and non-air quality environmental impacts of compliance; (3) any existing pollution control technology in use at the source; (4) the remaining useful life of the source; and (5) the degree of improvement in visibility which may reasonably be anticipated to result from the use of such technology.See also40 CFR 51.308(e)(1)(ii)(A). The five-factor analysis occurs during steps 4 and 5 of the process.

South Dakota requested that Otter Tail Power Company complete a BART analysis for Big Stone I and used this analysis as a basis for its BART determination for this source for NOX, SO2and PM. The Otter Tail BART analysis is included in Appendix C of the SIP. Otter Tail generally followed the five steps contained in the BART Guidelines and evaluated the five BART factors. In some instances, South Dakota identified additional control technologies for evaluation and also added an analysis of average cost effectiveness compared to visibility benefit (dollar per deciview) for the various multi-pollutant control options. We find that South Dakota, through its reliance on Otter Tail's BART analysis, reasonably considered the five BART factors and arrived at a reasonable BART determination for Big Stone I. We propose to approve South Dakota's BART determination summarized below.

Big Stone I is a steam electric generating plant located near Big Stone City, South Dakota with one generating unit burning Powder River Basin coal and a net electrical output of 475 MW. The Otter Tail Power Company is the operating agent for the Big Stone Plant co-owners: NorthWestern Energy, Montana-Dakota Utilities, Co., a division of MDU Resources Group, and Otter Tail Power Company. The generating unit is a Babcock cyclone boiler that started operating in 1975. The State analyzed each pollutant and its effect on the visibility in Class I areas. Since Big Stone I does not have a total generating capacity greater than 750 MW, South Dakota was not required to follow the BART Guidelines in determining BART, but it generally followed the approach for determining BART set out in the Guidelines. A summary of the State's analyses of existing controls and potential BART controls for each pollutant is set forth below. The State's BART determination for Big Stone I is provided in Section 6 of the SIP. The visibility and cost impacts noted in the following assessment are derived from the company's BART analysis provided in Appendix B of the SIP.15

SO 2 BART Review:Unit 1 has no existing SO2controls. The baseline uncontrolled SO2emissions that South Dakota reported in the SIP are 18,000 tons per year.

Step 1: Identify All Available Technologies.

The State identified the following SO2control options as having potential application to Unit 1: Fuel switching, coal cleaning, coal upgrading (K-Fuel), hydrated lime injection, semi-dry flue gas desulfurization (FGD), wet FGD, Enviroscrub, electro catalytic oxidation and the Airborne process.

Step 2: Eliminate Technically Infeasible Options.

The State eliminated the following options as technically infeasible: Coalcleaning, coal upgrading, hydrated lime injection, Enviroscrub, Electro catalytic oxidation and the Airborne process. Fuel switching is a viable method to reduce sulfur dioxide emissions by switching to a fuel with lower sulfur content. The Big Stone facility's primary fuel source is subbituminous coal obtained from the Powder River Basin in Wyoming. Powder River Basin subbituminous coal has one of the lowest sulfur contents available in the United States. As such, the State concluded that Otter Tail Power Company has already implemented fuel switching.

Step 3: Evaluate Control Effectiveness of Remaining Control Technology.

The State considered the control efficiencies listed in Table 6.

Step 4: Evaluate Impacts and Document Results.

Factor 1: Costs of compliance.

The State relied on Otter Tail's cost analysis for SO2controls and this is summarized below in Table 7. The State deemed the average cost effectiveness reasonable for the two remaining control options, semi-dry and wet FGD.

Factor 2: Energy impacts.

The State noted increased energy demand estimates provided by Otter Tail of 9,500 kilowatts (2.0 percent of generation) for wet FGD and 3,325 kilowatts (0.7 percent of generation) for semi-dry FGD. The State did not identify any energy requirements that would preclude the selection of either of the two alternatives.

Factor 3: Non-air quality environmental impacts.

The State described the non-air quality environmental impacts of the two control alternatives including the solid and aqueous waste streams. The semi-dry FGD system would be installed upstream of the existing baghouse. The baghouse would be used to collect the injected lime and reacted sulfur dioxide emissions along with other existing particulate matter emissions. Otter Tail did not identify how much additional particulate matter would be collected by the baghouse due to the use of the semi-dry FGD system. Otter Tail assumed the additional material collected in the baghouse would be negligible compared to the existing collection. Otter Tail estimated that the wet FGD system would generate an additional 44,700 tons of gypsum solids which would need to be properly disposed. The State did not identify any non-air quality effects that would preclude the selection of either of the two alternatives.

Factor 4: Remaining useful life.

The expected remaining useful life of the unit is greater than 30 years.

Factor 5: Evaluate visibility impacts.

Table 8 presents a comparison of the visibility impacts of the two top control options, wet FGD and semi-dry FGD. The values are derived from modeling conducted by Otter Tail. For the cases presented, Otter Tail held the emission rates for NOXand PM constant but varied the SO2emissions rates in the model as noted. In some cases, the modeling predicted that the semi-dry FGD would produce a greater visibility benefit than the wet FGD. It is not clear why the model predicted this result; it may relate to stack parameters. Based on the visibility modeling, the State found that there would be no discernible visibility benefit from selecting a wet FGD over a semi-dry FGD.

Step 5: Select BART.

South Dakota determined BART to be the second ranked control option, semi-dry FGD at 90 percent control efficiency in Section 6.3.5.2 of the SIP. Even though the top ranked control option, wet FGD at 95 percent control efficiency, reduced the SO2emissions more than the second ranked option, the State determined that there is no discernible difference between the two options when considering visibility impacts. South Dakota specified BART limits of 505 lb/hour and 0.09 lb/MMBtu (30-day rolling average) that apply at all times including periods of startup, shutdown and malfunction. The estimated cost of the semi-dry FGD system was $1,462 per ton ($/ton) of SO2removed, and the capital and annualized costs were estimated to be $141,300,000 and $23,570,000 per year ($/year or $/yr), respectively.

We are proposing to approve the State's SO2BART determination for Big Stone I. The State's assessment of costs and other impacts and its elimination of the wet FGD at 95% control efficiency was reasonable based on the five-factor analysis. While the average cost effectiveness values for both wet FGD and semi-dry FGD are reasonable, the modeling predicted that the use of a wet FGD at 95% efficiency rather than a semi-dry FGD at 90% efficiency would result in minimal, if any, visibility benefit. Thus, it was reasonable for the State to eliminate a wet FGD at 95% efficiency from consideration. The installation of a semi-dry FGD at Big Stone I will result in a reduction in annual SO2emissions from the plant of approximately 16,120 tons.16 The visibility benefit for the selected BART controls for all pollutants combined is provided in the summary in Table 12 in section III.C.3.b. below.

NO X BART Review:Big Stone I is already equipped with overfire air (OFA) for NOXcontrol. South Dakota indicates in the SIP that Unit 1 has baseline controlled NOXemissions of 18,000 tons per year with an emission rate of 0.65 lb/MMBtu.

Step 1: Identify All Available Technologies.

South Dakota identified the following control options as having potential application as BART: Selective catalytic reduction (SCR), oxygen enhanced combustion, catalytic absorption/oxidation, gas reburn, Enviroscrub, electro-catalytic oxidation, NOXStar, Cascade processes, selective non-catalytic reduction (SNCR), rich reagent injection (RRI), flue gas recirculation (FGR), separated over-fire air (SOFA), over-fire air (OFA), and low-NOXburners (LNB).

Step 2: Eliminate Technically Infeasible Options.

The State identified the following control options as technically infeasible: Oxygen enhanced combustion, absorption/oxidation, gas reburn, Enviroscrub, electro-catalytic oxidation, NOXStar, Cascade processes, and LNB. The State noted that flue gas recirculation is not known to reduce nitrogen oxide emissions any further when added with an over-fire air system. Therefore, the State and Otter Tail Power Company did not conduct any further review of flue-gas recirculation.

Step 3: Evaluate Control Effectiveness of Remaining Control Technology.

The State considered the control efficiencies listed in Table 9.

Step 4: Evaluate Impacts and Document Results.

Factor 1: Costs of compliance.

The State relied on Otter Tail's cost analysis for NOXcontrols and this is summarized below in Table 10. The State deemed the average cost effectiveness reasonable for all of the remaining control options, SCR, SNCR, RRI, SOFA, and OFA, as provided by Otter Tail.

Factor 2: Energy impacts.

The State noted that all the energy impacts were less than one percent of the plant's generating capacity and did not identify any energy requirements that would preclude the selection of any of the alternatives.

Factor 3: Non-air quality environmental impacts.

The State discussed that the OFA and SOFA systems would increase the amount of unburned carbon in the flyash, which would increase the amount of flyash that needs to be properly disposed. Otter Tail Power Company considers this increase negligible compared to the existing amount of flyash being properly disposed.

The State noted that the SNCR and the SCR systems would generate a small amount of unreacted ammonia or urea to be emitted. Even though ammonia and urea are not considered regulated air pollutants, these emissions are involved in the formation of ammonium sulfates and ammonium nitrates, which contribute to the amount of visibility impairment.

The State did not identify any non-air quality environmental impacts that would preclude the selection of any of the control equipment alternatives.

Factor 4: Remaining useful life.

The expected remaining useful life of the unit is greater than 30 years.

Factor 5: Evaluate visibility impacts.

Table 12, below, presents the visibility impacts for the State's selected BART controls for all pollutants. The values presented come from Otter Tail's modeling. The State found that SCR + SOFA would result in greater visibility improvement than the other options.

Step 5: Select BART.

South Dakota determined BART to be SCR + SOFA. South Dakota specified BART limits of 561 lb/hour and 0.10 lb/MMBtu (30-day rolling average) that apply at all times including periods of startup, shutdown, and malfunction. The estimated cost of the SCR + SOFA controls was $825 per ton ($/ton) of NOXremoved, and the capital and annualized costs were estimated to be $81,800,000, and $13,210,000 per year ($/year or $/yr), respectively.

We are proposing to approve the State's NOXBART determination for Big Stone I. The State's assessment of costs and other impacts was reasonable. The installation of SCR and SOFA at Big Stone I will result in a reduction in annual NOXemissions from the plant of approximately 16,000 tons. Table 12, below, provides the visibility benefit for the selected BART controls for all pollutants combined.

PM BART Review:Big Stone I is already equipped with a pulse jet fabric filter baghouse for PM which is considered the most efficient control technology available. The baseline controlled PM emissions that South Dakota reported in the SIP are 300 tons per year with an emission rate of 0.015 lb/MMBtu. The State identified the following PM control options as having potential application to the Big Stone I boiler: Existing fabric filter baghouse, new fabric filter baghouse, compact hybrid particulate collector (COHPAC), electrostatic precipitator, wet scrubber,and cyclones/multiclones. The State did not eliminate any of the control technologies as technically infeasible for controlling PM emissions from the boiler.

South Dakota determined BART to be no additional controls. The State reviewed the five BART factors generally, but noted no further detailed analysis was required since Otter Tail has already installed and is operating a fabric filter baghouse, which is the top particulate control technology. South Dakota specified BART limits of 67.3 lb/hour and 0.012 lb/MMBtu (30-day rolling average). The latter represents a stringent level of control that is consistent with recent Best Available Control Technology determinations for PSD permits.

We are proposing to approve the State's PM BART determination for Big Stone I. The State's assessment that no detailed analysis is required since the most stringent control option is already in place is consistent with the BART Guidelines. (40 CFR 51, appendix Y, IV.D.5.) Furthermore, since South Dakota's proposed BART emission limits does not explicitly exempt emissions during malfunctions, we interpret the SIP to require compliance with the PM limits at all times (including malfunctions).

We have summarized South Dakota's BART determinations in Table 11 below. We have summarized the visibility impacts at the appropriate Class I areas for South Dakota's selected BART controls in Table 12 below. The substantial emissions reductions in SO2and NOXwill result in a significant improvement in visibility at several Class I areas. The visibility improvement from reducing both pollutants at the most impacted area, Boundary Waters, is estimated to be 0.9 deciviews and 54 fewer days above 0.5 deciviews.17

South Dakota's Regional Haze Rule, which we are proposing to approve with the SIP, requires each source subject to BART to install and operate BART no later than five years after we approve the Regional Haze SIP. Administrative Rules of South Dakota (ARSD) Chapter 74:36:21. Given the scope of the retrofits involved, five years represents a schedule that is expeditious as practicable. This satisfies the requirement under 40 CFR 51.308(e)(1)(iv), that “each source subject to BART be required to install and operate BART as expeditiously as practicable, but in no event later than 5 years after approval of the implementation plan revision.”

As noted previously, to be approvable, the Regional Haze SIP must include monitoring, recordkeeping, and reporting requirements to ensure that the BART limits are enforceable. South Dakota has included these requirements in ARSD Chapter 74:36:21. We have reviewed these requirements and find them to be adequate as they relate to the BART limits we are proposing to approve. In particular, for SO2and NOXBART limits, the rule requires the use of continuous emission monitoring systems (CEMS) to determine compliance, generally in accordance with 40 CFR part 75. For the filterable PM BART limits, the rule requires stack testing. Adequate recordkeeping and reporting requirements are also specified.

For the reasons discussed above, we propose to find that South Dakota satisfied the BART requirements of 40 CFR 51.308(e).

The EPA is withdrawing severable portions of its September 23, 2009, proposed disapproval of revisions to Title 30 of the Texas Administrative Code (30 TAC) Section 116.10(11)(A) and (B), submitted March 13, 1996; July 22, 1998; and September 4, 2002. These are severable portions of the definition of “modification of existing facility.”

As noted in the September 23, 2009, proposed action on Subparagraphs (A) and (B), the two Subparagraphs are not severable from each other. See 74 FR 48450, at 48452. The two provisions were considered in conjunction with each other as our basis of evaluation in the original proposal. Because (B) is now repealed, and the wording of (A) has been changed in an October 5, 2010, submitted revision,1 the basis of evaluation in the original proposed action has changed. As proposed July 18, 2011 (76 FR 42078), EPA therefore withdraws its previously proposed action so that the submitted revised Subparagraph (A) and the impact of the repeal of Subparagraph (B) upon the revised Subparagraph (A) may be addressed in a future separate action. This course of action will promote efficiency, mitigate confusion, and facilitate new comments on the future proposed action on the October 5, 2010, submittal with a proper basis of evaluation. Given the need for comments and evaluation of the newly submitted regulatory wording changes to Subparagraph (A), EPA considers any established deadline under theBusiness Coalition for Clean Air Appeal Group (BCCA)Settlement Agreement to be inapplicable with respect to this provision.

The repeal of Subparagraph (B) in the October 2010 SIP submittal also renders moot and inapplicable any obligation to act on that provision under the BCCA Settlement Agreement. Because Subparagraph (B) was repealed and is no longer before EPA for action, no further action is needed on this provision. Consequently, EPA now withdraws its previously proposed action on Subparagraph (B).

In response to our July 18, 2011, proposed withdrawal of 30 TAC 116.10(11)(A) and (B), we received comments from Texas Industry Project and BCCA Appeal Group. The commenters agree that it is appropriate to withdraw the proposed disapproval of these provisions because Subparagraph (A) has been amended since EPA's proposed disapproval and because Subparagraph (B) has been repealed. Based upon the proposal and consideration of the comments we received, we are withdrawing the proposed September 23, 2009, disapproval of 30 TAC 116.10(11)(A) and (B), as submitted March 13, 1996; July 22, 1998; and September 4, 2002. Subparagraph (A) as it appears in the October 5, 2010, submittal will be evaluated and will be addressed in a separate future action.

I. General Information A. Does this action apply to me?

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed at the end of the pesticide petition summary of interest.

1.Submitting CBI.Do not submit this information to EPA through regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2.Tips for preparing your comments.When submitting comments, remember to:

i. Identify the document by docket ID number and other identifying information (subject heading,Federal Registerdate and page number).

ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

iv. Describe any assumptions and provide any technical information and/or data that you used.

v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

vi. Provide specific examples to illustrate your concerns and suggest alternatives.

vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

viii. Make sure to submit your comments by the comment period deadline identified.

3.Environmental justice.EPA seeks to achieve environmental justice, the fair treatment and meaningful involvement of any group, including minority and/or low-income populations, in the development, implementation, and enforcement of environmental laws, regulations, and policies. To help address potential environmental justice issues, the Agency seeks information on any groups or segments of the population who, as a result of their location, cultural practices, or other factors, may have atypical or disproportionately high and adverse human health impacts or environmental effects from exposure to the pesticides discussed in this document, compared to the general population.

EPA is announcing its receipt of several pesticide petitions filed under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, requesting the establishment or modification of regulations in 40 CFR part 180 for residues of pesticide chemicals in or on various food commodities. The Agency is taking public comment on the requests before responding to the petitioners. EPA is not proposing any particular action at this time. EPA has determined that the pesticide petitions described in this document contain the data or information prescribed in FFDCA section 408(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data support granting of the pesticide petitions. After considering the public comments, EPA intends to evaluate whether and what action may be warranted. Additional data may be needed before EPA can make a final determination on these pesticide petitions.

Pursuant to 40 CFR 180.7(f), a summary of each of the petitions that are the subject of this document, prepared by the petitioner, is included in a docket EPA has created for each rulemaking. The docket for each of the petitions is available on-line athttp://www.regulations.gov.

As specified in FFDCA section 408(d)(3), (21 U.S.C. 346a(d)(3)), EPA is publishing notice of the petitions so that the public has an opportunity to comment on the requests for the establishment or modification of regulations for residues of pesticides in or on food commodities. Further information on the petitions may be obtained through the petition summaries referenced in this unit.

1.PP 1E7923.(EPA-HQ-OPP-2011-0860). Interregional Research Project Number 4 (IR-4), IR-4 Project Headquarters, Rutgers, The State University of New Jersey, 500 College Road East, Suite 201 W, Princeton, NJ 08450, requests to establish tolerances in 40 CFR part 180 for residues of the insecticide clothianidin, (E)-1-(2-chloro-1,3-thiazol-5-ylmethyl)-3-methyl-2-nitroguanidine, in or on strawberry at 1.4 parts per million (ppm); citrus fruit group 10-10 at 0.5 ppm; citrus, dried pulp at 1 ppm; pistachio at 0.01 ppm; and tea, plucked leaves at 50 ppm. Adequate enforcement methodology (liquid chromatography/mass spectroscopy/mass spectroscopy) (LC/MS/MS) analysis is available to enforce the tolerance expression. Contact: Sidney Jackson, (703) 305-7610, email address:jackson.sidney@epa.gov.

2.PP 1E7925.(EPA-HQ-OPP-2011-0905). Interregional Research Project Number 4 (IR-4), 500 College Road East, Suite 201 W, Princeton, NJ 08540, requests to establish tolerances in 40 CFR part 180 for residues of the insecticide etofenprox, [2-(4-ethoxyphenyl)-2-methylpropyl 3-phenoxybenzyl ether], in or on food andfeed commodities at 0.5 ppm. An aliquot was purified by solid phase extraction (graphitized carbon black for alfalfa, snap bean pods with seed, and leaf lettuce and HAX solid phase extraction for pasture grass and snap bean foliage). The purified extract was concentrated to dryness, reconstituted in acetonitrile:water, and submitted to LC/MS/MS analysis. Contact: Andrew Ertman, (703) 308-9367, email address:ertman.andrew@epa.gov.

3.PP 1E7929.(EPA-HQ-OPP-2011-0906). Interregional Research Project Number 4 (IR-4), 500 College Road East, Suite 201 W, Princeton, NJ 08540, requests to establish tolerances in 40 CFR part 180 for residues of the fungicide cyazofamid, 4-chloro-2-cyano-N,N-dimethyl-5-(4-methylphenyl)-1H-imidazole-1-sulfonamide (CA) and its metabolite CCIM, 4-chloro-5-(4-methylphenyl)-1H-imidazole-2-carbonitrile (CA), expressed as cyazofamid, in or on bean, succulent at 0.4 ppm; bean, succulent, shelled at 0.07 ppm; leafy greens, subgroup 4A at 9.0 ppm; basil, fresh leaves at 30.0 ppm; basil, dried leaves at 80.0 ppm; vegetable, tuberous and corm, subgroup 1C at 0.02 ppm; and vegetable, fruiting, group 8-10 at 0.40 ppm. LC/MS/MS is used to measure and evaluate the residues of cyazofamid. Contact: Laura Nollen, (703) 305-7390, email address:nollen.laura@epa.gov.

4.PP 1F7916.(EPA-HQ-OPP-2011-0781). Canyon Group LLC, c/o Gowan Company, 370 South Main St., Yuma, AZ 85364, requests to establish tolerances in 40 CFR part 180 for residues of the herbicide halosulfuron-methyl, methyl 5-[(4,6-dimethoxy-2-pyrimidinyl)amino]carbonylaminosul-fonyl]-3-chloro-1-methyl-1H-pyrazole-4-carboxylate, and its metabolites and degradates, in or on millet, proso, forage at 7.0 ppm; millet, proso, hay at 0.02 ppm; millet, proso, grain at 0.01 ppm; millet, proso, straw at 0.01 ppm; grass forage, fodder, and hay, crop group 17, forage at 17.0 ppm; and grass forage, fodder, and hay, crop group 17, hay at 0.9 ppm. A practical analytical method, gas chromatography with a nitrogen-specific detector (GC-NSD), is available for enforcement purposes. The analytical method accounts for parent halosulfuron-methyl and for the halosulfuron-methyl rearrangement ester, sometimes referred to as “RRE” and “MON 5781.” This product results from the abstraction for the SO2NHCO moiety between the rings, such that the two rings are then joined together only by an NH group. Contact: Maggie Rudick, (703) 347-0257, email address:rudick.maggie@epa.gov.

5.PP 1F7927.(EPA-HQ-OPP-2011-0873). FMC Corporation, 1735 Market St., Philadelphia, PA 19103, requests to establish tolerances in 40 CFR part 180 for residues of the herbicide, fluthiacet-methyl, acetic acid [[2-chloro-4-fluoro-5-[(tetrahydro-3-oxo-1H,3H-[1,3,4]thiadiazolo[3,4-α]pyridazin-1-ylidene)amino]phenyl] thio]-methyl ester, and its acid metabolite fluthiacet, [[2-chloro-4-fluoro-5-[(tetrahydro-3-oxo-1H,3H-[1,3,4]thiadiazolo[3,4-α]pyridazin-1-ylidene)amino]phenyl]thio]], in or on the raw agricultural commodities of crop group 15 (except rice): grain, cereal at 0.01 ppm; grain, cereal, forage at 0.05 ppm; grain, cereal, hay at 0.05 ppm; grain, cereal, stover at 0.05 ppm; grain, cereal, straw at 0.05 ppm; and crop subgroup 6C: pea and bean (except soybean), dried shelled at 0.01 ppm. The analytical enforcement method for fluthiacet-methyl was used with minor modification. The analytical method for all crop matrices consisted of solvent extraction using a high speed mixer, followed by centrifugation. An aliquot of the resulting supernatant was filtered and diluted as necessary for quantitation by high performance liquid chromatography with tandem mass spectrometric detection (HPLC/MS/MS). Contact: Bethany Benbow, (703) 347-8072, email address:benbow.bethany@epa.gov.

6.PP 8F7463.(EPA-HQ-OPP-2009-0364). Bayer CropScience, 2 T.W. Alexander Drive, Research Triangle Park, NC 27709, requests to establish tolerances in 40 CFR part 180 for indirect or inadvertent residues of the fungicide fluopyram, (N-[2-[3-chloro-5-(trifluoromethyl)-2-pyridinyl]ethyl]-2-(trifluoromethyl)benzamide), in or on alfalfa, forage at 0.25 ppm; alfalfa, hay at 0.80 ppm; rapeseed (canola seed) at 5.0 ppm; corn, sweet, kernel plus cob with husk removed at 0.10 ppm; cotton, gin byproducts at 0.05 ppm; cotton, undelinted seed at 0.10 ppm; grain, cereal, forage, fodder and straw, group 16, except rice; forage at 8.0 ppm; grain, cereal, forage, fodder and straw, group 16, except rice; hay, straw and stover at 14 ppm; grain, cereal, forage, fodder and straw, group 16, except rice; aspirated fractions at 50 ppm; grain, cereal, group 15, except rice and sweet corn at 3.0 ppm; soybean, aspirated fractions at 70 ppm; soybean, forage at 8.0 ppm; soybean, hay at 30 ppm; soybean, hulls at 0.40 ppm; and soybean, seed at 0.30 ppm. Fluopyram was determined to be the only analyte required for analysis based on the metabolic profile in plants, the short pre-harvest intervals analyzed, and results from preliminary residues trials in Europe. The analytical method involves, solvent extraction, filtration, and addition of an isotopically labeled internal standard followed by solid phase extraction. Quantitation is by high performance liquid chromatography-electrospray ionization/tandem mass spectrometry. Contact: Lisa Jones, (703) 308-9424, email address:jones.lisa@epa.gov.

PP 1E7929.(EPA-HQ-OPP-2011-0906). Interregional Research Project Number 4 (IR-4), 500 College Road East, Suite 201 W, Princeton, NJ 08540, requests to remove, upon approval of the aforementioned tolerances in paragraph 3. under “New Tolerances,” the tolerances in 40 CFR 180.601 for residues of the fungicide cyazofamid, 4-chloro-2-cyano-N,N-dimethyl-5-(4-methylphenyl)-1H-imidazole-1-sulfonamide (CA) and its metabolite CCIM, 4-chloro-5-(4-methylphenyl)-1H-imidazole-2-carbonitrile (CA), expressed as cyazofamid, in or on spinach at 9.0 ppm; potato at 0.02 ppm; vegetable, fruiting, group 8 at 0.40 ppm; and okra at 0.40 ppm. These tolerances are being proposed to be removed, as they will be superseded by inclusion in crop group or subgroup tolerances in paragraph 3. under “New Tolerances.” Contact: Laura Nollen, (703) 305-7390, email address:nollen.laura@epa.gov.

PP 1E7877.(EPA-HQ-OPP-2011-0934). Dow Corning Corporation, 2200 W. Salzburg Road, Midland, MI 48640, requests to establish an exemption from the requirement of a tolerance for residues of silicic acid, sodium salt, reaction products with chlorotrimethylsilane and isopropyl alcohol, reaction with poly(oxypropylene)-poly(oxyethylene) glycol, in or on the raw agricultural commodity under 40 CFR 180.960, as a component of seed coatings that provide non-sticking when the seeds are in the planter machines, and also control water permeation to slow germination of the seeds at 1,000 ppm. The petitioner believes no analytical method is needed because no analytical method is generally required for the establishment of a tolerance exemption. Contact: Alganesh Debesai, (703) 308-8353, email address:debesai.alganesh@epa.gov.

PP 0F7758.(EPA-HQ-OPP-2011-0950). Lonza, Inc., 90 Boroline Road, Allendale, NJ 07401, requests to amend an existing exemption from the requirement of a tolerance in 40 CFR180.940(a) for residues of didecyl dimethyl ammonium carbonate and didecyl ammonium bicarbonate (hereinafter cited jointly as DDACB), in or on food-contact surfaces when applied/used in public eating places, dairy processing equipment, and/or food processing equipment, and utensils at 400 ppm. The petitioner believes no analytical method is needed because the subject quaternary ammonium compounds are exempt from the requirements of a tolerance. Contact: Drusilla Copeland, (703) 308-6224, email address:copeland.drusilla@epa.gov.

The information in this section is organized as follows:

The EPA is proposing to grant a petition submitted by the ConocoPhillips Billings Refinery to have residual solids from processing sludge removed from two storm water tanks at its Billings, Montana Refinery excluded or delisted from the RCRA definition of a hazardous waste, contingent upon such waste being dewatered and de-oiled using a filter press and/or portable centrifuge and the resulting solids disposed in a RCRA Subtitle D Landfill.

The ConocoPhillips petition requested the residual solids from processed storm water tank sludge be excluded from the F037 waste listing. F037 wastes are wastes that are generated in the separation of oil/water/solids from petroleum refinery process wastewaters and oily cooling wastewaters. This exclusion will apply to an annual maximum of 200 cubic yards of residual solids. ConocoPhillips claims that the petitioned waste does not meet the criteria for which the EPA listed it, and that there are no additional constituents or factors which could cause the waste to be hazardous.

Based on our review described in section III, we agree with the petitioner that the waste is nonhazardous. The EPA reviewed the description of the process which generates the waste and the analytical data submitted by ConocoPhillips. We believe that the petitioned waste does not meet the criteria for the F037 waste listing, and that there are no other factors which might cause the residual solids to be hazardous.

ConocoPhillips will dispose of the residual solids from the processed storm water tank sludge in a RCRA Subtitle D landfill which is regulated by the State of Montana, or other state subject to Federal RCRA delisting, to manage industrial waste.

The EPA published an amended list of hazardous wastes from nonspecific and specific sources on January 16, 1981, as part of its final and interim final regulations implementing section 3001 of RCRA. The EPA has amended this list several times and published it at 40 CFR 261.31 and 261.32. The EPA lists these wastes as hazardous because: (1) They typically and frequently exhibit one or more of the characteristics of hazardous wastes identified in subpart C of part 261 (that is, ignitability, corrosivity, reactivity, and toxicity); (2) they meet the criteria for listing contained in 40 CFR 261.11(a)(2) or (a)(3); or (3) the wastes are mixed with or derived from the treatment, storage or disposal of such characteristic and listed wastes and which therefore become hazardous under 40 CFR 261.3(a)(2)(iv) or (c)(2)(i), known as the “mixture” or “derived-from” rules respectively.

Individual waste streams may vary depending on raw materials, industrial processes, and other factors. Thus, while a waste described in the regulations generally is hazardous, a specific waste from an individual facility meeting the listing description may not be. A procedure to exclude or delist a waste is provided in 40 CFR 260.20 and 260.22, which allows a person, or a facility, to submit a petition to the EPA, or an authorized state, demonstrating that a specific waste from a particular generating facility is not hazardous.

In a delisting petition, the petitioner must show that a waste does not meet any of the criteria for listed wastes in 40 CFR 261.11 and that the waste does not exhibit any of the hazardous waste characteristics of ignitability, reactivity, corrosivity, or toxicity. The petitioner must present sufficient information for the EPA to decide whether any factors, in addition to those for which the waste was listed, warrant retaining it as a hazardous waste. (See 40 CFR 260.22; 42 U.S.C. 6921(f).)

If a delisting petition is granted, the generator remains obligated under RCRA to confirm that the waste remains nonhazardous.

In reviewing this petition, we considered the original listing criteria and the additional factors required by the Hazardous and Solid Waste Amendments of 1984 (HSWA).SeeHSWA § 222, 42 U.S.C. 6921(f); 40 CFR 260.22(d)(1)-(4). We evaluated the petitioned waste against the listing criteria and factors cited in §§ 261.11(a)(2) and (3).

In addition to considering the criteria in 40 CFR 260.22(a) and 261.11(a)(2) and (3), 42 U.S.C. 6921(f), and information in the background documents for the listed waste, the EPA must consider any factors (including additional constituents) other than those for which the EPA listed the waste, if these additional factors could cause the waste to be hazardous.

The EPA's tentative decision to delist waste from the ConocoPhillips Billings Refinery is based on our evaluation of the waste for factors or criteria that could cause the waste to be hazardous. These factors include: (1) Whether the waste is considered acutely toxic; (2) the toxicity of the constituents; (3) the concentration of the constituents in the waste; (4) the tendency of the constituents to migrate and to bioaccumulate; (5) the persistence in the environment of any constituents once released from the waste; (6) plausible and specific types of management of the petitioned waste; (7) the quantity of waste produced; and (8) waste variability.

The EPA must also consider as hazardous wastes mixtures containing listed hazardous wastes and wastes derived from treating, storing, or disposing of listed hazardous waste.See40 CFR 261.3(a)(2)(iv) and (c)(2)(i) (referred to as the “mixture” and “derived-from” rules, respectively). Mixture and derived-from wastes are also eligible for exclusion but remain hazardous until excluded.

On December 3, 2010, ConocoPhillips petitioned the EPA to exclude a maximum annual volume of 200 cubic yards of F037 residual solids from processing (for oil recovery) the sludge removed from the two storm water tanks at the Billings, Montana refinery from the lists of hazardous waste contained in 40 CFR 261.31 and 261.32. The F037 listing includes residuals from the processing of oil-bearing hazardous secondary materials (i.e.,the sludge in the storm water tanks) excluded under 40 CFR 261.4(a)(12)(i). Sediment in the storm water tanks accumulates from storm water runoff from the Refinery's process area, as well as some dry-weather flow consisting of water from wash-down, maintenance, and cleaning activities, steam condensate and heat exchanger back-flushing. This sediment is processed by the refinery for the recovery of oil and the residual solids are classified as hazardous waste due a conservative interpretation for the assignment of hazardous waste code F037. The waste conservatively falls under the classification of listed waste under 40 CFR 261.3.

ConocoPhillips generates the waste through periodically removing and processing sludge accumulated in two storm water tanks through oil recovery and dewatering. The sludge in the storm water tanks is accumulated storm water runoff from the Refinery's process area, and some dry-weather flow consisting of water from wash-down, maintenance, and cleaning activities as well as steam condensate and heat exchanger back-flushing. The sludge in not accumulated at a constant rate and is currently removed from the tanks at approximately 18 month intervals and processed via centrifuge and/or filter press for oil recovery and dewatering. Recovered oil is reinserted into the refining process and water from dewatering is routed to the Refinery's on-site wastewater treatment plant.

ConocoPhillips collected sample sludge from 16 locations in each tank, the sludge was composited and processed for oil recovery and dewatering through a filter press, and submission of the filter pressed residual solid material for analysis. A total of eight composite samples, one duplicate and one matrix spike/matrix duplicate were analyzed for both total and Toxicity Characteristic Leaching Procedure (TCLP) analyses of constituents of concern (COC). The COC list was comprised of a subset of the Appendix IX constituent list in 40 CFR 264, and was based on: (1) Knowledge of the refinery processes and wastes; (2) the evaluation of available references, including Exhibit 3 of the March 23, 2000 USEPA RCRA Delisting Program Guidance manual for the Petitioner entitledConstituents of Concern for Wastes from Petroleum Processes;(3) the U.S. EPA Region 5 “Skinner List” constituents and (4) the basis for the F037 listing per 40 CFR 261 Appendix VII. Each sample was also analyzed for pH, oil & grease, total cyanide and total sulfide. Two samples of the filter pressed material (one from each tank) were analyzed using both neutral and alkaline pH TCLP extraction fluids as presented in the delisting guidance.

The table below presents the maximum observed total concentrations and the TCLP concentrations for all the COC. Total concentrations are expressed in milligrams per kilogram (mg/kg) and leachate concentrations are expressed in milligrams per liter (mg/L). ConocoPhillips submitted a signed statement certifying accuracy and responsibility of the results.See40 CFR 260.22(i)(12)).

For this delisting determination, the EPA applied the Delisting Risk Assessment Software (DRAS) described in various EPA rulemakings.See, e.g.,65 FR 58,015 (Sept. 27, 2000); 65 FR 75,637 (Dec. 4, 2000) and 73 FR 28,768 (May 19, 2008). We used the most recent version of DRAS, v.3.0.34 updated in September 2010. DRAS calculates the potential risks associated with disposing a given waste stream to a landfill or surface impoundment. For a given waste stream, DRAS calculates both the waste's aggregate risks and also back-calculates each waste constituent's maximum allowable concentration permissible for delisting. DRAS requires the user to assign a target cancer risk and hazard index.

For this analysis, DRAS was used to predict the maximum allowable concentrations of hazardous constituents that may be released from ConocoPhillips's storm water tank filter press solids after landfill disposal, and determined the potential impact of disposal on human health and the environment. In assessing potential risks to ground water, the EPA used the maximum estimated waste volumes and the maximum reported extract concentrations as inputs to the DRAS program to estimate the constituent concentrations in ground water at a hypothetical receptor well down gradient from the disposal site. The EPA used two risk levels to evaluate the ConocoPhillips waste: carcinogenic risk of 10-6 and non-cancer hazard index of 0.1 and; carcinogenic risk of 10-5 and non-cancer hazard index of 1.0. The DRAS program can back-calculate the acceptable receptor well concentrations (referred to as compliance-point concentrations) using standard risk assessment algorithms and the EPAhealth-based numbers. Using the maximum compliance-point concentrations and the EPA Composite Model for Leachate Migration with Transformation Products (EPACMTP) fate and transport modeling factors, DRAS further back-calculates the maximum permissible waste constituent concentrations not expected to exceed the compliance-point concentrations in ground water.

The EPA believes the EPACMTP fate and transport model represents a reasonable worst-case scenario for possible ground water contamination resulting from disposal of the petitioned waste in a landfill, and that a reasonable worst-case scenario is appropriate when evaluating whether a waste should be relieved of the protective management constraints of RCRA Subtitle C. The use of some reasonable worst-case scenarios resulted in conservative values for the compliance-point concentrations and ensures that the waste, once removed from hazardous waste regulation, will not pose a significant threat to human health or the environment.

DRAS also uses the maximum estimated waste volumes and the maximum reported total concentrations to predict possible risks associated with releases of waste constituents through surface pathways (e.g.,volatilization or wind-blown particulate from the landfill). As in the above ground water analyses, DRAS uses the risk level, the health-based data and standard risk assessment and exposure algorithms to predict maximum compliance-point concentrations of waste constituents at a hypothetical point of exposure. Using fate and transport equations, DRAS uses the maximum compliance-point concentrations and back-calculates the maximum allowable waste constituent concentrations, also known as delisting levels. In most cases, because a delisted waste is no longer subject to hazardous waste control, the EPA is generally unable to predict, and does not presently control, how a petitioner will manage a waste after delisting. Therefore, the EPA currently believes that it is inappropriate to consider extensive site specific factors when applying the fate and transport model.

DRAS results, which calculate the maximum allowable concentration of chemical constituents in the waste, are presented in Table I. Based on the comparison of DRAS results and the maximum TCLP and Totals concentrations found in Table I, the petitioned waste should be delisted because no constituents of concern tested are likely to be present or formed as reaction products or by-products above the delisting levels.

ConocoPhillips's petition requests a delisting of the residual solids from processed sludge from the two storm water tanks from being considered a F037 waste. ConocoPhillips believes that the storm water tank sludge does not meet the original criteria for the hazardous waste listing. ConocoPhillips also believes no additional constituents or factors could cause the waste to be hazardous. The EPA's review of this petition included consideration of the original listing criteria, and the additional factors required by the Hazardous and Solid Waste Amendments of 1984 (HSWA).SeeRCRA 3001(f), 42 U.S.C. 6921(f); 40 CFR 260.22(d)(1)-(4). In making the initial delisting determination, the EPA evaluated the petitioned waste against the listing criteria and factors cited in 40 CFR 261.11(a)(2) and (a)(3). Based on this review, the EPA agrees with the petitioner that the waste is nonhazardous with respect to the original listing criteria. If the EPA, based on this review, had found that the waste remained hazardous based on the factors for which the waste was originally listed, the EPA would have proposed to deny the petition. The EPA evaluated the waste with respect to other factors or criteria to assess whether there is a reasonable basis to believe that such additional factors could cause the waste to be hazardous. The EPA considered whether the waste is acutely toxic, the concentration of the constituents in the waste, their tendency to migrate and to bioaccumulate, their persistence in the environment once released from the waste, plausible and specific types of management of the petitioned waste, the quantities of waste generated, and waste variability. The EPA believes that the petitioned waste does not meet the listing criteria and thus should not be a listed waste. The EPA's proposed decision to delist waste from the ConocoPhillips Billings Refinery is based on the information submitted in support of this rule, including descriptions of the wastes and analytical chemistry data of the residual solids from the storm water tank clean-out.

The maximum reported concentrations of hazardous constituents found in the filter press solids and the filter press solids TCLP extracts are presented in Table I above. The table also presents the maximum allowable concentrations in a TCLP extract of the residual solids from storm water tank sludge processing, calculated by the DRAS program. The concentrations of all constituents in leachate from the filter press solids are below the allowable concentrations. We, therefore, conclude that the ConocoPhillips waste does not pose a potential substantial hazard to human health and the environment when disposed of in a RCRA Subtitle D landfill.

We, therefore, propose to grant exclusion for this waste. If this exclusion is finalized, ConocoPhillips must dispose of the residual solids from the processed storm water tank sludge in a RCRA Subtitle D landfill regulated by the State of Montana, or other state subject to Federal RCRA delisting, to manage industrial waste. Prior to disposal ConocoPhillips must verify that the concentrations of the constituents of concern in the residual solids do not exceed the allowable levels set forth in this exclusion. The list of constituents for verification is based on the concentration and frequency of occurrence, as presented in the ConocoPhillips petition.

RCRA 3001(f) specifically requires the EPA to provide notice and an opportunity for comment before granting or denying a final exclusion. Thus, the EPA will not grant the exclusion unless and until it addresses all timely public comments on this proposal, including any at public hearings.

RCRA 3010(b)(1), 42 U.S.C. 6930(b)(1), allows rules to become effective in less than six months when the regulated community does not need the six-month period to come into compliance. That is the case here, because this rule, if finalized, would reduce the existing requirements for persons generating hazardous wastes.

The EPA believes that this exclusion should be effective immediately upon publication of the final rule because a six-month deadline is not necessary to achieve the purpose of RCRA 3010(b), and a later effective date would impose unnecessary hardship and expense on this petitioner. These reasons also provide good cause for making this rule effective immediately, upon final publication, under the Administrative Procedure Act, 5 U.S.C. 553(d).

ConocoPhillips must dispose of the residual solids from the processed storm water tank sludge in a RCRA Subtitle D landfill that is regulated by the State ofMontana, or other state subject to Federal RCRA delisting, to manage industrial waste. ConocoPhillips must verify prior to disposal that the concentrations of the COC in the residual solids do not exceed the allowable levels set forth in this exclusion.

Concentrations measured in the TCLP extract of the waste must not exceed the values given in Table I.

During the period of cleanout, ConocoPhillips must collect two composite samples of the residual solids from the filter pressed sludge to account for potential variability in each tank. Composite samples from the storm water tanks processed residuals must be collected each time cleanout occurs and residuals are generated. TCLP analyses for the standard acid extraction for trace elements and organic COC listed in Table I must be conducted. Concentrations of all constituents must be below the delisting limits in Table I above.

Whenever tank cleanout is conducted, ConocoPhillips must verify that the filter press solids meet the delisting levels in 40 CFR 261, Appendix IX, Table 1, as amended by this notice. ConocoPhillips must submit the verification data to U.S. EPA Region 8, 1595 Wynkoop Street, RCRA Delisting Program, Mail code 8P-HW, Denver, CO 80202. ConocoPhillips must compile, summarize and maintain, onsite, records of operating conditions and analytical data for a period of five years.

If ConocoPhillips violates the terms and conditions established in this exclusion, the EPA will initiate procedures to withdraw the exclusion. Where there is an immediate threat to human health and the environment, the EPA will evaluate the need for enforcement activities on a case-by-case basis. The EPA expects ConocoPhillips to conduct the appropriate waste analysis and comply with the criteria detailed in 40 CFR 261, Appendix IX, Table 1, as amended by this notice.

ConocoPhillips must notify the EPA in writing if the manufacturing process, the chemicals used in the manufacturing process, the treatment process, or the chemicals used in the treatment process significantly change. ConocoPhillips must handle wastes generated after the process change as hazardous until it has: demonstrated that the wastes continue to meet the delisting concentrations in paragraph (1); Demonstrated that no new hazardous constituents listed in Appendix VIII of 40 CFR 261 have been introduced; and it has received written approval from the EPA.

Because the EPA is issuing this exclusion under the Federal RCRA delisting program, only states subject to Federal RCRA delisting provisions would be affected. This would exclude states who have received authorization from the EPA to make their own delisting decisions.

The EPA allows states to impose their own non-RCRA regulatory requirements that are more stringent than the EPA's, under RCRA 3009, 42 U.S.C. 6929. These more stringent requirements may include a provision that prohibits a federally-issued exclusion from taking effect in the state. Because a dual system (that is, both federal (RCRA) and state (non-RCRA) programs) may regulate a petitioner's waste, the EPA urges petitioners to contact the state regulatory authority to establish the status of their wastes under applicable state law. Delisting petitions approved by the EPA Administrator or his delegate pursuant to 40 CFR 260.22 are effective in the State of Montana after the final rule has been published in theFederal Register.

Under Executive Order 12866, “Regulatory Planning and Review,” (58 FR 51735, Oct. 4, 1993) this rule is not of general applicability and, therefore, is not a regulatory action subject to review by the Office of Management and Budget (OMB). This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501et seq.) because it applies to a particular facility only. Because this rule is of particular applicability relating to a particular facility, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601et seq.), or to sections 202, 204, and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). Because this rule will affect only a particular facility, it will not significantly or uniquely affect small governments, as specified in section 203 of UMRA. Because this rule will affect only a particular facility, 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 government, as specified in Executive Order 13132, “Federalism”, (64 FR 43255, Aug. 10, 1999). Thus, Executive Order 13132 does not apply to this rule. Similarly, because this rule will apply to a particular facility, this final rule does not have tribal implications, as specified in Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments,” (65 FR 67249, Nov. 9, 2000). Thus, Executive Order 13175 does not apply to this rule. This rule also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks,” (62 FR. 19885, Apr. 23, 1997) 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 basis for this belief is that the Agency used DRAS, which considers health and safety risks to children, to calculate the maximum allowable concentrations for this rule. This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866. This rule does not involve technical standards; thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988, “Civil Justice Reform”, (61 FR 4729, February 7, 1996), in issuing this rule, the EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct.

For the reasons set out in the preamble, the EPA proposes to amend 40 CFR part 261 as follows:

A. Background

Section 9004 of RCRA enables EPA to approve implementation of State UST programs in lieu of the Federal UST program. Approval is granted when it has been determined that the Stateprogram: (1) Is no less stringent than the overall Federal program and includes the notification requirements of Section 9004(a)(8), 42 U.S.C. 6991c(a)(8), and (2) provides for adequate enforcement of compliance with UST standards of Section 9004(a), 42 U.S.C. 6991c(a).

The Idaho Department of Environmental Quality (IDEQ) is the lead implementing agency for the UST program in Idaho. IDEQ has broad statutory authority to regulate UST releases under Idaho Code, Title 39, Chapter 1, Environmental Quality—Health; Title 39, Chapter 72, Idaho Land Remediation Act; Chapter 88, Idaho Underground Storage Tank Act; and the Idaho Rules for Civil Procedure. Specific authorities to regulate the installation, operation, maintenance, and closure of USTs is found under the Idaho Administrative Procedures Act 58.01.02 Water Quality Standards; 58.01.07 Rules Regulating Underground Storage Tank Systems; 58.01.18 Idaho Land Remediation Rules; 58.01.23 Rules of Administrative Procedure Before the Board of Environmental Quality; 58.01.24 Standards and Procedure for Application of Risk Based Corrective Action at Petroleum Release Sites.

Idaho is not authorized to carry out its UST program in Indian Country. This includes all lands within the exterior boundaries of the Coeur d'Alene, Duck Valley, Fort Hall, Kootenai, and Nez Perce Reservations; any land held in trust by the United States for an Indian Tribe, and any other lands that are Indian Country within the meaning of 18 U.S.C. 1151.

It is EPA's policy to make reasonable accommodation to persons with disabilities wishing to participate in the Agency's programs and activities, pursuant to the Rehabilitation Act of 1973, 29 U.S.C. 791,et seq.Any request for accommodation should be made to Erik Sirs, (208) 378-5762, preferably a minimum of two weeks in advance of the public hearing date, so that EPA will have sufficient time to process the request.

Please bring this notice to the attention of any persons known by you to have an interest in this determination.

All documents that are in the electronic docket are also available in hard copy during normal business hours at the following locations:

This proposed rule only applies to Idaho's UST Program requirements pursuant to RCRA Section 9004 and imposes no requirements other than those imposed by State law. It complies with applicable EOs and statutory provisions as follows:

The Office of Management and Budget (OMB) has exempted this rule from its review under Executive Order 12866.

This proposed action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501et seq.,because this proposed rule does not establish or modify any information or recordkeeping requirements for the regulated community and only seeks to authorize the pre-existing requirements under State law and imposes no additional requirements beyond those imposed by State law. Burden 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 Title 40 of the CFR are listed in 40 CFR part 9.

The Regulatory Flexibility Act (RFA) generally requires Federal agencies to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute 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 organizations, and small governmental jurisdictions. For purposes of assessing the impacts of today's proposed rule on small entities, small entity is defined as: (1) A small business defined by the Small Business Administration's size regulations at 13 CFR part 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district, or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. I certify that this proposed rule will not have a significant economic impact on a substantial number of small entities because the proposed rule will only have the effect of authorizing pre-existing requirements under State law and imposes no additional requirements beyond those imposed by State law. EPA continues to be interested in the potential impacts of the proposed rule on small entities and welcomes comments on issues related to such impacts.

This proposed rule does not have any impacts as described in the Unfunded Mandates Reform Act because this rule codifies pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law. It does not contain any unfunded mandates or significantly or uniquely affects small governments.

This proposed rule does not have Federalism implications. It will not have substantial direct effects on the States, on the relationship between thenational government and the States, or on the distribution of power and responsibilities among various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This rule proposes to authorize pre-existing State rules. Thus, Executive Order 13132 does not apply to this proposed rule. In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA specifically solicits comment on this proposed rule from State and local officials.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (59 FR 22951, November 9, 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.” This proposed rule does not have Tribal implications, as specified in Executive Order 13175 because EPA retains its authority over Indian Country. Thus, Executive Order 13175 does not apply to this proposed rule. EPA specifically solicits additional comment on this proposed rule from Tribal officials.

EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This action is not subject to Executive Order 13045 because it proposes to approve a state program.

This proposed rule is not subject to Executive Order 13211, “Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a “significant regulatory action” as defined under Executive Order 12866.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, 12(d) (15 U.S.C. 272), 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 bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This proposed rulemaking does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards.

Executive Order 12898 (59 FR 7629, February 16, 1994) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. EPA has determined that this proposed rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations. This proposed rule does not affect the level of protection provided to human health or the environment because this rule proposes to authorize pre-existing State rules which are no less stringent than existing Federal requirements.

On January 7, 2010, the NTSB published a final rule entitled, “Notification and Reporting of Aircraft Accidents or Incidents and Overdue Aircraft, and Preservation of Aircraft Wreckage, Mail, Cargo, and Records,” in theFederal Register(75 FR 922). The final rule implemented several changes to section 830.5, requiring immediate notification of a variety of specific incidents, one of which was certain ACAS advisories. In accordance with the Administrative Procedure Act, prior to issuing the final rule, the NTSB published a notice of proposed rulemaking (NPRM) in theFederalRegisterto invite comments concerning the proposed changes. (73 FR 58520; October 7, 2008). Several commenters stated they believed the language of section 830.5(a)(10), concerning ACAS advisories, would require reports ofallACAS advisories. In issuing the final rule, the NTSB attempted to clarify section 830.5(a)(10) by assuring commenters—in the preamble published in theFederal Register—that the NTSB only sought ACAS advisories in the following circumstances: “(1) When an aircraft is being operated on an instrument flight rules flight plan and compliance with the advisory is necessary to avert a substantial risk of collision between two or more aircraft; or (2) to an aircraft operating in class A airspace.” 75 FR at 923.

Although the NTSB believed the language of the final rule adequately conveyed the limited circumstances in which the NTSB would require notification of ACAS advisories, the NTSB has since determined it would achieve the same safety objective by receiving reports under a more specific set of circumstances. Therefore, the NTSB now proposes to amend the language of the rule to eliminate notifications of events where the only resolution advisory received by the flight crew is “monitor vertical speed.” Review of numerous TCAS events by Safety Board investigators has shown “monitor vertical speed” advisories typically occur in situations where there is no collision risk, and in encounters where separation between aircraft deteriorates TCAS will generate additional resolution advisories containing instructions to climb or descend. As notification of those advisories will continue to be required under the modified rule, the effect of this change will be to eliminate the need for operators to notify the NTSB of events which present no actual or potential hazard. The intent of the notification requirement is to allow the NTSB to review potentially hazardous encounters. We conclude this change will not significantly reduce our ability to do so.

This proposed rule would amend the requirements for providing immediate notification to the NTSB of certain ACAS advisories, reducing the number of required notifications by aircraft operators.

This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of the potential costs and benefits under section 6(a)(3) of that Order. As such, the Office of Management and Budget (OMB) has not reviewed this proposed rule under Executive Order 12866. In addition, on July 11, 2011, the President issued Executive Order 13579, “Regulation and Independent Regulatory Agencies,” 76 FR 41587, July 14, 2011). Section 2(a) of the Executive Order states:

Consistent with Executive Order 13579, the NTSB's proposed amendments to section 830(a)(10) reflect its judgment that certain types of ACAS notifications are unnecessary and, therefore, the notification and reporting requirements should be streamlined. This proposed rule does not require an analysis under the Unfunded Mandates Reform Act, 2 United States Code (U.S.C.) 1501-1571, or the National Environmental Policy Act, 42 U.S.C. 4321-4347.

In addition, the NTSB has considered whether this proposed rule would have a significant economic impact on a substantial number of small entities, under the Regulatory Flexibility Act (5 U.S.C. 601-612). The NTSB certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. In accordance with 5 U.S.C. 605(b), the NTSB will submit this certification to the Chief Counsel for Advocacy at the Small Business Administration.

This proposed rule would not require collection of new information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Operators have the option of notifying the NTSB of an ACAS advisory that fulfills the requirements of this rule via telephone, email, or web-based form. The NTSB is working with the Office of Information and Regulatory Affairs, OMB, to obtain an OMB control number under the Paperwork Reduction Act to display on the web-based form.

The NTSB does not anticipate that this proposed rule will have a substantial, direct effect on state or local governments or will preempt state law; as such, this proposed rule does not have implications for federalism under Executive Order 13132, Federalism. This proposed rule also complies with all applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. In addition, the NTSB has evaluated this proposed rule under: Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights; Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks; Executive Order 13175, Consultation and Coordination with Indian Tribal Governments; Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use; and the National Technology Transfer and Advancement Act, 15 U.S.C. 272 note. The NTSB has concluded that this proposed rule does not contravene any of the requirements set forth in these Executive Orders or statutes, nor does this proposal prompt further consideration with regard to such requirements. The NTSB invites comments relating to any of the foregoing determinations and notes that the most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data.

As noted above, the NTSB proposes to amend section 830.5(a)(10) to require the reporting of:

Airborne Collision and Avoidance System (ACAS) advisories issued either:

i. When an aircraft is being operated on an instrument flight rules flight plan and compliance with the advisory is necessary to avert a substantial risk of collision between two or more aircraft; or

ii. To an aircraft operating in class A airspace, unless the advisory received only instructs the pilot to “monitor vertical speed.”

The NTSB believes such an update will sufficiently clarify the types of reports of ACAS advisories the NTSB seeks, and adequately narrow the reporting requirement.

In addition, as the NTSB pointed out in the October 2008 NPRM proposing this requirement, the International Civil Aviation Organization (ICAO) had noted the NTSB's regulations did not previously require the notification of any air proximity events. The amendment the NTSB now proposes to section 830.5(a)(10) continues to require reports of ACAS advisories, but narrows the requirement to exclude advisories that merely instruct pilots to monitor their vertical speed.

The NTSB believes the proposed change to section 830.5(a)(10) will continue to assist in achieving the NTSB's purpose of improving aviationsafety, while ensuring the language of the rule only requires notifications regarding specific ACAS advisories that the NTSB may seek to investigate.

For the reasons discussed in the preamble, the NTSB proposes to amend 49 CFR part 830 as follows: